SWAYZE, J. The facts of the case are stated in the opinion of the vice chancellor. The bill was filed for the specific performance of a covenant in the deed from John A. Speer to the Montclair Railway Company, of which the defendant is the successor. The covenant required the railway company to provide the grantor "with a suitable and convenient road crossing across the track of said railway" where the grantor might direct. The decree directed the railroad company to construct a tunnel through its embankment and across its right of way, 12 feet wide and 12 feet high, and to maintain the tunnel at all times thereafter.

The rights of the complainant depend upon the provision in the deed, and not upon section 14 of the general railroad law of 1873 (P. L. 1873, p. 88; Revision 1877, p. 929, 102; as amended in 1891, Gen. St. p. 2661). Section 14 of the general railroad law, as originally passed, applied only to companies incorporated under the act. It is not necessary now to consider whether the clause subsequently inserted could affect railroads existing under a special charter; for there is no proof that the Montclair Railway or either of its successors is within the terms of the description. The defendant is the lessee of the New York & Greenwood Lake Railway Company, which acquired by foreclosure sales the property and franchises of the Montclair Railway Company. The last-named company was incorporated in 1867 (P. L. 1867, p. 301). The provisions of its charter as to road crossings differ from the provisions of the general railroad law in that the charter requires the railway company to construct and keep in repair bridges over or under the railway where any public or other road shall cross the same, and omits the provision as to wagonways where the railroad intersects the farm or lands of an individual. The provision as to the crossing of roads is intended for the protection of the public, who have the right to travel therein, and is applicable only to roads in which the public have such a right. These are public roads, private roads, and by-roads. Green v. Morris & Essex R. R. Co., 24 N. J. Law, 486, 490; Wood v. Hurd, 34 N. J. Law, 87. The provision as to wagonways in the general railroad law is intended for the benefit of individual landowners, to secure them access from one portion of their lands to another, notwithstanding the construction of the railroad. The language of the general railroad law is similar to the language commonly used in railroad charters before the incorporation of the Montclair Railway in 1867. Camden & Amboy R. R., P. L. 1829-30, p. 88; New Jersey R. R. & Transportation Co., P. L. 1831-32, p.

p. 29; Morris & Easton R. R., P. L. 183637, p. 426; Somerville & Easton R. R., P. L. 1847, p. 133. The omission of the usual provision as to wagonways in the charter of the Montclair Railway Company indicates that the Legislature did not intend to impose that burden on the company.

The crossing involved in this case was a mere wagonway connecting portions of the complainant's lands which had been severed by the construction of the railroad, and was protected by bars and a fence, which the deed compelled the railroad company to make and maintain. Even if the charter provisions had been in the form usual at that date in railroad charters, it would have been competent for the owner of the land to agree with the railroad company as to the method of crossing; and where a deed for the land is made embodying such an agreement, it is to that deed we must look for the obligations of the parties. Brearley v. Delaware & Raritan Canal Co., 20 N. J. Law, 236; Perry v. Pennsylvania R. R. Co., 55 N. J. Law, 178, 184, 26 Atl. 829; Pipe Line Co. v. D. L. & W. R. R. Co., 62 N. J. Law, 254, 272, 41 Atl. 759. In construing the deed we are helped by an examination of the language at that time common in railroad charters, and afterwards used in the general railroad law. In all except the earliest-that of the Camden & Amboy-the railroad company is required to construct passages "over or under" the railroad. The general law adds the word "across." These citations from the statutes suffice to show that from the beginning of railroads in this state a difference was recognized between a crossing over and a crossing under the railroad. The natural meaning of the expression used in the deed, “a suitable and convenient road crossing across the track of said railway," is a grade crossing. And so the parties to the deed themselves construed it at the time. The decree of the Court of Chancery gives the owner of the land a tunnel under the railroad, instead of the grade crossing provided for by the deed, at a cost of over $5,000 to the railroad company, for the sole benefit of land of the complainant, worth about one-third that amount. Such a result could certainly not be deemed equitable, unless the crossing provided for by the deed had become impracticable through the fault of the defendant. In this case the impracticability of maintaining the crossing in its former state is due to the enforced change of grade made by the railroad company in obedience to a decree of the court of chancery, pursuant to the statute (P. L. 1895, p. 462; Gen. St. p. 2717, § 343), in order to subserve the advantage and safety of the public by doing away with a crossing at grade of the railroad and the street railway. It is inequitable to force the defendant to substitute for the crossing which its predecessor in title agreed to give a better passage of a different kind, and

much more onerous to the company-more onerous not merely in the first cost, but in the future maintenance of the tunnel and the railroad structure above. The incapacity of the defendant to carry the contract into execution affords a ground of defense in a suit for specific performance. Fry on Specific Performance, § 658; Danforth v. Philadelphia & Cape May Short Line Company, 30 N. J. Eq. 12, 16. And even where it is possible to perform the contract, specific performance is refused if the burden upon the defendant greatly outweighs the advantage to the complainant, and the party is left to his action at law for damages. Instances where specific performance of contracts similar to the present has been denied by the courts are Murdfeldt v. New York, West Shore & Buffalo Railway Co., 102 N. Y. 703, 7 N. E. 404; Conger v. New York, West Shore & Buffalo R. Co., 120 N. Y. 29, 23 N. E. 983; Goding v. Bangor & Aroostook R. Co., 94 Me. 542, 48 Atl. 114. An early case is Clarke v. Rochester Railroad, 18 Barb. 350. In the latter case the court refused specific performance because "a crossing would be of small value to the owner and would entail much expense on the company." Judge Strong, in delivering the opinion of the court, said: "The court will never compel a performance specifically when, looking at all the circumstances on both sides, it is apparent that injustice would thereby be done." Most of the cases cited from the New York reports by the respondent involve the performance by the railroad company of a statutory duty, and the courts held that it was no defense that the performance of that duty might be very onerous. The specific performance of a contract, of which exact performance is impossible, stands upon a different footing. The case of Post v. West Shore & B. Ry. Co., 123 N. Y. 580, 26 N. E. 7, is more like the present case, but there is this important difference: The change of the highway in that case was the voluntary act of the railway company, although made to meet the objection of the highway commissioner to the road as at first proposed; and Judge Andrews was careful to say: "But the covenant with the plaintiff was not discharged by the objection of the commissioner, for the company was under no legal compulsion to follow his discretion in the matter." In the present case the company was under the compulsion of a decree of the very court which makes the present decree. In the present case it is not physically impossible for the railroad to construct a railroad crossing as the deed requires. It cannot, indeed, construct a grade. crossing at exactly the same point of space. The change of grade makes that impossible. It has offered to construct a grade crossing at the same point in its line, but at the new grade. To make such a crossing it will be necessary either to construct approaches on the company's land parallel to and on both sides of

its track, making a considerable greater distance for the complainant to travel; or to construct approaches at right angles to the track, for which purpose complainant's land must be used. It has been held in a similar case in Massachusetts that the expense of preparing the approaches on his own land must be borne by the landowner (Williams v. Clark, Rec'r, 140 Mass. 238, 5 N. E. 802, 804); but that case turned on the language of the deed, which required the railroad company to make a crossing entirely within the limits of the land conveyed, from which the court inferred that what was necessarily done outside of those limits must be done by the landowner, for the railroad company could not enter upon his lands without committing a trespass. In Storer v. Great Western Railway Co., 2 Younge & Collyer, 48, the vice chancellor decreed that the railroad company should perform its agreement, and that the plaintiff must afford them all reasonable assistance in his power. The opinion states that the plaintiff undertook to put the railroad company in possession of the land necessary for the approaches. In the present case the complainant is unwilling to accept a grade crossing with approaches constructed on the railroad company's land, or to allow the approaches to be constructed on his own land. He insists upon a tunnel. Where specific performance of a contract in exact accordance with its terms has become impossible, the courts have in some instances required the defendant to perform as nearly as possible. Pomeroy on Specific Performance, §§ 296, 297. If that rule is applicable to a case like the present, we think the methods of crossing proposed by the defendant both approximate more closely to the original crossing than the tunnel. The complainant cannot, by rejecting those plans, equitably compel the defendant to give him such an entirely different passage at an expense nearly ten times as great.

Although we think the complainant is not entitled to a decree for specific performance, we think he is entitled to compensation for the destruction of his crossing. It is true, as counsel for the defendant argued, that he was bound to anticipate a possible change of grade in the railroad as public necessity might require. The State v. Central Railroad Co., 32 N. J. Law, 220, decided in 1867, three years before the date of the deed now in question. He was not bound to anticipate that his crossing would thereby be destroyed. The right of the railroad to change the grade as the need arose was subject to an obligation to preserve fairly the private use. Nor can he be deprived of his crossing without compensation because the change of the grade was made under compulsion of the Court of Chancery. The change of grade did not make it necessary for the railroad company to destroy the crossing. They might, if they had chosen, have built the tunnel which the complainant demands; and,

although we think it inequitable to give the complainant more than the deed entitles him to, we think he is entitled to be made whole for what he has lost. He was not bound to accept the new methods of crossing suggested by the defendant, since they differed materially from the crossing as it had existed. The only way in which the complainant can be made whole is by the payment to him of the value of what he has lost.

The jurisdiction of the Court of Chancery to award damages where both parties submit themselves to the jurisdiction of the court is established. The cases are collected in Vice Chancellor Pitney's opinion in Sparks Manufacturing Co. v. The Town of Newton, 57 N. J. Eq. 367, at pages 392, 393, 41 Atl. 385, at page 395, and the opinion in this respect met with the approval of this court. Ingersoll v. Newton, 60 N. J. Eq. 399, 45 Atl. 596.

The complainant has not submitted the question of damages to the court, and may not wish to do so. If he elects so to do, the bill may be retained in order that the damages which the complainant has sustained by the destruction of the crossing may be ascertained by the Court of Chancery. If he does not so elect, the bill must be dismissed.

(72 N. J. L. 102)

ISETTS v. BLIWISE. (Supreme Court of New Jersey. March 10, 1905.)

ACTION ON CONTRACT-FAILURE TO PERFORMDEFENSE-PLEADING-FINDING-CON

CLUSIVENESS-APPEAL.

1. In an action to recover a balance of the contract price for the erection of a building, no plea that the plaintiff failed to perform the contract is necessary to present the defense in the district court.

2. Where defendant filed a notice of recoupment, setting up the failure of the plaintiff to comply with the contract, and claiming damages therefor, a finding by the district judge that there had been a substantial compliance with the contract, when there is any evidence from which he may so find, is conclusive on appeal.

Appeal from District Court of Newark.

Action by Walter E. Isetts against Louis Bliwise. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued February term, 1905, before DIXON, GARRISON, and SWAYZE, JJ.

Michael J. Tansey, for appellant. Northup & Lafferty, for appellee.

SWAYZE, J. This is an action to recover a balance of the contract price for erecting a building. The defense was that the plaintiff had failed to perform his contract. No plea❘ was necessary to present this defense in the district court. The defendant did, however, file a notice of recoupment, setting up the failure of the plaintiff to comply with the contract, and claiming damages therefor, and the district court allowed damages for this

defect in performance. The defendant now insists that the plaintiff was not entitled to recover the balance of the contract price, and that the judgment should have been for the defendant. It seems to be conceded by the brief filed for the defendant that, if there was a substantial compliance by the plaintiff with the terms of the contract, he would be entitled to recover the contract price, less a fair allowance to make good the defect in the performance of the contract. Feeney v. Bardsley, 66 N. J. Law, 239, 19 Atl. 443. The district court judge found as a fact that there had been a substantial performance of the contract. The only question open, there fore, is whether there was any evidence from which the district court judge might so find. We think there was, and the judgment must be affirmed, with costs.

(69 N. J. E. 339) STERLING v. GERMAN-AMERICAN INS.

CO. (Court of Chancery of New Jersey. March 4, 1905.)

FIRE INSURANCE-AWARD OF APPRAISERS-SUIT TO VACATE-EVIDENCE-SUFFICIENCY.

1. In a suit to set aside an award by appraisers, to whom the question of damage by fire was submitted, where a witness for complainant estimated the cost of new buildings at $2,890, while the appraisers fixed it at $2,750, the difference was not sufficiently radical to show that plaintiff was injured by the award, or to justify the court in setting it aside be cause the complainant was not notified that the appraisers intended to meet and estimate the damages.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1429, 1434.]

2. Evidence examined, and held sufficient to show that complainant had notice that the appraisers under an insurance policy would meet at the time and place they did meet, in pursu ance of which she attended, and that she ac quired such notice a sufficient length of time before the meeting to notify her counsel to be present, if she had desired to have him present.

Sult by Mary J. Sterling against the Ger man-American Insurance Company to set aside an award of appraisers. Decree for defendant.

Mr. Satterthwait, for complainant. James Buchanan, for defendant.

BERGEN, V. C. The complainant, having suffered a loss by fire, submitted the question of damage resulting therefrom to ap. praisers, according to one of the conditions of the policy of indemnity issued by the defendant to her. The appraisers awarded to the complainant $1,800 as compensation for her loss, and this amount was arrived at by ascertaining the cost of reproducing new buildings and foundations similar to those injured, and deducting therefrom the value of the foundations which were not destroyed or appreciably injured, and also an allowance for depreciation resulting from age. The principal building destroyed was a barn,

The

the first story of which was built of stone. The upper story was a frame building, and naturally depreciated in value during the 50 years since its erection, notwithstanding usual and necessary repairs. A witness produced by the complainant, being a carpenter from the neighborhood, estimated the cost of new buildings at $2,890, while the ap praisers fixed it at $2,750, a difference in estimates not sufficiently radical to warrant the assumption that the appraisers were actuated by any improper motives. stone wall was standing, and its condition subject to the view of the appraisers, who are not charged with being either incompetent or dishonest, and the allowance made by them for the stone wall constituting the first story, together with that for depreciation, cannot be said to be so excessive as to justify the inference that the appraisers acted upon an erroneous principle or made any such mistake as to call for a review of their judgment. I have considered this branch of the case only upon the theory suggested by counsel when the evidence was offered, viz., that in order to have the benefit of the allegation that the complainant had no notice of the meeting of the appraisers, which is the potent factor upon which the complainant relies, it was necessary to show that she had been injured by the award, or that such a doubt as to the accuracy of the conclusion had been raised as to justify the court in setting aside the award because the complainant was not notified that the appraisers intended to meet and estimate the damages.

It has been held in this court that similar proceedings, under like policies, were not ordinary arbitrations, but only an appraisal and ascertainment of the amount of loss (American Central Insurance Co. v. Landau, 62 N. J. Eq. 73, 49 Atl. 738), and that the necessity of notice to the parties of the time and place of the meeting of the appraisers depends upon the circumstances surrounding each case, and whether the insured has already furnished all necessary information, or whether he has requested that he be present to make any additional explanation, or to hear what may be said by others (Stout v. Phoenix Assur. Co., 65 N. J. Eq. 566, 56 Atl. 691). In the latter case the relief here sought-the setting aside of the awardwas granted for want of notice of the meeting; but that determination was reached because the court found that "neither of the appraisers had seen the personal property destroyed, nor, except casually, the dwelling itself. All information respecting the personalty was derived from the list contained in the proof of loss, and all information concerning the real estate from the description contained in the policy. The appraisers had no knowledge of the age or condition of either. No effort was made to ascertain their original cost, or to what extent the property had depreciated by time or use."

Turning to the case we are now consider

ing, it appears that Mr. Kirkbride, the appraiser selected by the complainant, was her neighbor living on an adjoining farm, and had resided there for at least 20 years, on which were located buildings similar, if not identical, with those partially destroyed. It appears that he had often visited the buildings on complainant's farm, and was quite familiar with their size, construction, and condition, and as a witness impressed me as being a person of more than ordinary intelligence, and well qualified to perform the duty cast upon him by the complainant in her selection. The appraiser selected by the defendant was a carpenter and builder of many years' experience, in consequence of which he had been repeatedly called upon to act as an appraiser in similar cases. The testimony shows that, two or three days before the appraisement was made, Mr. Kirkbride and the complainant met, and had some conversation with reference to the time when the appraisers would meet. These parties do not agree exactly as to what took place, but I am satisfied from the evidence that Mr. Kirkbride, in reply to a question put by the complainant, told her that it was not necessary that she should be present, and that he did not then know when they would meet, but, before the complainant left, Mr. Kirkbride had ascertained the date, and told the complainant that they would meet the following Monday. This the complainant denies, but it appears that she was on the ground at the time appointed. She gives as a reason for her being there that she went from Trenton to the property, which was located in Bucks county, Pa., on that day, to attend to the putting in of a pump. It does not appear in this case that she took any steps to carry out the alleged object of her visit, and I am not disposed to give much credit to this statement. I believe she went there because Mr. Kirkbride had told her of the proposed meeting. However, whatever the reason may be, she was there, and called the attention of the ap praisers, while they were measuring the foundation to ascertain the size of the building, to certain elements of loss which she apparently thought they would overlook, and expressed no dissatisfaction with their' proceeding at that time.

The circumstances which influenced Vice Chancellor Reed in the case last cited are not present here. The appraiser Mr. Kirkbride had full knowledge of the age and condition of the buildings, which he communicated to the other appraiser. The complainant was present, with the opportunity to make any additional explanation she desired, and these appraisers did ascertain the cost of the building, and the extent the property had depreciated by time and use.

I am not convinced that this complainant is entitled to have this award vacated for the reasons set forth in the bill of complaint, because I am satisfied from the evidence that she had notice that the appraisers would

meet at the time and place when they did meet, in pursuance of which she attended, and that she acquired this notice a sufficient length of time before their meeting to notify her counsel to be present if she desired it, her residence in Trenton being at the most three or four blocks from the office of her counsel; and I am of opinion that she relied more upon Mr. Kirkbride, her friend and neighbor, to look after her interest in the matter of appraisement, than she did upon her counsel.

The conclusions I have reached lead to a dismissal of this bill, and I will so advise.

(71 N. J. L. 527)

STATE v. MILLER. (Court of Errors and Appeals of New Jersey. March 6, 1905.)

CRIMINAL LAW APPEAL REVIEW MURDER -EVIDENCE-WOUNDS ON ACCUSED.

1. One convicted of crime sued out a writ of error to review the judgment of conviction, and procured the return, with the writ, not only of bills of exceptions, but of the entire record of the proceedings at the trial, as permitted by section 136 of the criminal procedure act of 1898 (P. L. p. 915). He assigned errors, but did not file or serve any specification of cause for relief or reversal, as required by section 137 of that act. Held that, upon the objection of the representative of the state, the plaintiff in error must be confined to his bills of exceptions and the assignments thereon.

2. It was not erroneous to admit evidence that the accused, on the night in question, was not present at a meeting, a series of which meetings was being held nightly, and which he usually attended; there being evidence that he left the house of his employer, which was not far distant from the scene of the crime, at a time which would have permitted him to go there.

3. It was not erroneous to permit the physician of the jail, in which the accused was confined, to testify to wounds observed by him on the backs of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands, and testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible, and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable.

4. It was not erroneous to permit evidence of the coincidence between the hand of the accused and a bloody print of a hand upon the wall of the house where the crime was committed; the hand of the accused having been placed thereon at the request of persons who were with him in that house.

5. It was not erroneous to permit evidence of the resemblance between spots upon the clothing produced, and spots which had been cut from the same clothing, and used by experts in determining whether they were spots of blood. (Syllabus by the Court.)

Error to Court of Oyer and Terminer, Passaic County.

Joseph Miller was convicted of murder, and brings error. Affirmed.

Isadore Klenert, for plaintiff in error. Eugene Emley, for the State.

MAGIE, Ch. This writ of error brings up for review the conviction of plaintiff in error

of the crime of murder in the first degree. The plaintiff in error has procured the return, with the writ of error, of the entire record of the proceedings at the trial, in the manner permitted by section 136 of the criminal procedure act of 1898 (P. L. 1898, p. 915). There were also returned therewith bills of exceptions. Plaintiff in error has assigned errors, of which some are founded on exceptions shown in said bills, and others are not so founded. He has not filed any specification of causes for relief or reversal, nor has he made it appear that he has served any such specification upon the Attorney General, or the prosecutor of the pleas, as he is required to do by section 137 of the act above cited. The prosecutor of the pleas, upon the argument, objected to our consideration of any questions presented upon the record of the proceedings at the trial, under section 136, because no causes for the relief or re versal were specified or served as required by section 137, and he insisted that the plaintiff in error should be confined to his bills of exception and the assignments of error thereon as prescribed by the latter section.

In the case of State v. Young, 67 N. J. Eq. 223, 51 Atl. 939, this court had before it a similar judgment of conviction, brought up by a writ of error, with bills of exception and the entire record of the proceedings at the trial. The plaintiff in error had assigned errors, but had failed to file or serve specifications. The omission was pointed out, with a quære whether, under such circumstances, the court was required to review any matters except such as were presented by the assignments of error; but because no objection had been interposed to the consideration of the whole matter, and the question suggested had not been argued, and because of the importance of the case to the plaintiff in error, we, deemed it best to consider his case in all its aspects. In the case before us now, upon the objection of the prosecutor of the pleas, we feel bound to declare that plaintiff in error cannot require us to review any matters except those presented by the bills of exception and the assignments of error thereon. To obtain a review of other matters under section 136, the plaintiff in error must specify the causes relied on, and serve such specifications upon the representative of the state, as required by section 137. State v. Shutts, 69 N. J. Law, 206, 54 Atl. 235.

The first assignment of error is founded on an exception to the admission of a question addressed to one Lewis, who had, without objection, testified that he was a licensed preacher of the African M. E. Church, having charge of the services of the church in Pompton, near the scene of the homicide: that he had been holding extra services every night for nearly three weeks previous to the time of the homicide; that plaintiff in error had been attending these services quite regularly, but that the witness had noticed his absence from the meetings. The question then put was, "How frequently was he ab