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other woman, named Maggie Walder. The indictment for bigamy so as to practically petition filed in this present case gives the admit the fact. defendant's name as Margaret Knott, and Our divorce act provides that, if it shall her maiden name as Margaret Walder. There appear to the court that both parties have seems to be no question about the identity of been guilty of adultery, no divorce shall be the parties. The object of the first-men decreed. Ordinarily, the defense of recrimitioned suit was to have the marriage be nation is presented by the defendant; but a tween the petitioner, Lena Knott, and the divorce suit is a somewhat unique judicial said John J. Knott annulled, and to compel proceeding in this respect: that the state has said John J. Knott to provide for the sup an interest to such an extent that it is often port and maintenance of the said Lena and referred to as a third party to the suit. It the children of the union of the said Lena is the duty of the court to see that divorces and John.

are not fraudulently obtained by parties who The petition of Lena alleged that after are not entitled thereto. It is not the duty the Philadelphia marriage she and Knott liv. of the court to conduct an investigation into ed as man and wife for a year and a half, the conduct of the petitioner in a case like when Knott eloped with a woman named this because of rumors or suspicions that he Rose Sonnebrun, whom he married, and with had been guilty of adultery, which would whom he lived in Weehawken; and that bar him of his divorce, if the same were Knott was indicted by the grand jury of proved in the case. But it happens in this Hudson county for bigamy, and pleaded guil instance that sworn testimony, including the ty, and was fined. The petition of Lena affidavit of the petitioner, John J. Knott, Knott further alleged that the said John J. himself, has been laid before the court reKnott, before his marriage to her, was also cently in another cause, apparently proving married to one Clara Seeker, from whom he that the said Knott has not only committed had never obtained a divorce; and that adultery since his marriage with the defendKnott, after being arrested, confessed that ant, from whom he now seeks to be divorced, he had four wives, all living.

but that he has committed a series of adul. The answer filed by Knott to the petition teries with different women, and that he has of Lena admits his marriage to Maggie Wal also committed the crime of bigamy or polygder on July 4, 1893, and that he had never amy, once in the state of Pennsylvania, and been divorced from her, and that she was probably twice in the state of New Jersey. still his legal wife. The answer further ad- | The court cannot ignore these depositions mits that marriage ceremony with Lena in now on file in the office of its clerk. Philadelphia, and that he lived with Lena Of course, no adjudication against the petiin Philadelphia for a short time, and after tioner would be made upon the testimony wards in Paterson. The answer sets up no above referred to, which has not been predenial of the other charges in the petition, sented in this cause. The testimony should but interposes a single defense to the effect be brought into the cause, and the petitioner that the petitioner, Lena Knott, had full should have an ample opportunity to meet it. knowledge, when she married the said John An order of reference will be advised to J. Knott, “that he was already married to the same master who has already reported, the said Maggie Walder, from whom he had , in which order the master will be specially never been divorced."

directed to inquire and report as to the alIn this suit of Lena Knott to have her mar leged adulteries of the said John J. Knott riage annulled a motion was made on her with the said Clara Seeker, Lena Knott, and behalf for alimony and counsel fees pendente Rose Sonnebrun. lite, on which motion affidavits were presented to the court, which are now on file in

(69 N. J. L 224) the cause; among them the affidavit of John J. Knott. This affidavit admits his marriage

ZELIFF v. WHRITENOUR. to Lena in Philadelphia, and the birth of a (Supreme Court of New Jersey. Feb. 23, daughter by her; also admits that he mar

1903.) ried Maggie Walder in 1893, and lived with TOWNSHIPS-BOARD OF FREEHOLDERS-APher until October, 1895, when, as the affida

POINTMENT

BY

TOWNSHIP COMMITTEE

DECLARATION OF VACANCY. vit states, the said Maggie deserted him; and

1. Under Act March 7, 1901 (P. L. 1901, p. that neither party had obtained a divorce,

49), providing that a vacancy existing in the of. but that she, the said Maggie Walder, was fice of chosen freeholder in any township may “his legal wife"; that on July 5, 1896, “while be filled for the unexpired term by the township under the influence of liquor," he was mar.

committee, the township committee cannot ap

point to the board of chosen freeholders unless ried to Clara Seeker, and lived with her for there is an actual vacancy for one of the causes about four hours after the marriage, when specified in the act. Their declaration that such he left her, but that neither party had ob

a vacancy exists. where contrary to fact, and tained any divorce. The affidavit further al

consequent appointment thereon, is a nullity. leges that the said Lena represented to him, Information in the nature of quo warranto the said John J. Knott, that, as Maggie Wal on the relation of Daniel P. Zeliff against Edder had remarried, he was thereby allowed gar Whritenour. On demurrer to plea. De to marry again. The affidavit refers to the murrer overruled.

Argued November term, 1902, before GUM PER CURIAM. Plaintiff was injured MERE, C. J., and VAN SYCKEL, FORT, while working at a “mill" in the defendant and PITNEY, JJ.

company's factory. His story of the acciFrancis Scott, for relator. James G.

dent was that as he was standing at his mill, Blauvelt, for defendant.

with his hand resting upon its frame, an in

candescent electric light wire, which was PER CURIAM. By the second section of suspended from the ceiling, and which, when a supplement to the act to incorporate the

not swaying, hung down at a distance of chosen freeholders in the respective coun

about two or three feet from the mill, was ties of this state, approved March 7, 1901 (P.

blown by the wind against a steam pipe con. L. 1901, p. 49), any vacancy existing in the

nected with the mill thereby momentarily office of chosen freeholders in any township,

charging the mill with electricity; that, by by reason of resignation, removal, death, or

reason of the contact of his hand with the any other cause, may be filled for the unex

frame of the mill, he received an electric pired term by the township committee. It

shock which caused him to lose his balance appears from the information in this case and fall against the rolls of the mill; that that the respondent was duly elected a cho

his hands were caught in them, and so sesen freeholder of the county of Passaic from

verely crushed as to necessitate amputation. the township of Manchester, and that while There was a verdict for the plaintiff. We occuying this office the township committee,

think it should be set aside, for two reasons: after formally declaring his office vacant up

1. It rests upon the conclusion that the acon the ground that he had removed out of

cident happened substantially in the way dethe state, appointed the relator to fill the al

scribed by the plaintiff; i. e., by his receiving leged vacancy for the unexpired term. The an electric shock, communicated from the defendant, in his plea, denies that his office

incandescent light wire in the way described. ever became vacant, and asserts that ever

This conclusion is against the preponderance since his election he has continued to be, and

of the evidence. still is, a resident of the township of Man

2. The evidence shows no negligent act or chester. This plea contains a complete an

omission on the part of the defendant which swer to the information. The demurrer ad contributed to plaintiff's injury. The incanmits the facts set out in it to be true. The descent light wire, when it was originally inpower of the township committee to appoint stalled, was properly covered with insulating a member of the board of freeholders for

material, but at the time of the accident this this township depends upon the existence

material had been torn or worn away from of the conditions prescribed in the statute.

a small section (about half an inch) of this Their declaration that one of the conditions wire at the point where it was said to have exist-the declaration being contrary to the come in contact with the steam pipe connectfact-affords no ground for action on their

ed with the mill on the occasion of the accipart, and such action is a nullity.

dent. The alleged negligence of the master The defendant is entitled to judgment on

(the defendant company) was its failure to the demurrer.

inspect this wire. The duty of a master to make inspection of appliances furnished to

workmen, or located in the place in which (69 N. J. L 221)

they are working, does not require such inFULTON V. GRIEB RUBBER CO.

spection to be continuous. It is to be made (Supreme Court of New Jersey. March 2, at reasonably frequent intervals. Where the 1903.)

appliance is not normally subjected to any INJURIES TO SERVANT-SAFE PLACE TO WORK

wear and tear, and there is no apparent like-INSPECTION.

lihood of its getting out of order, or, if it 1. The insulation on an incandescent lamp does so, of its being in the slightest degree wire, which hung from the ceiling in a factory,

dangerous to employés, much less frequent became worn away from a small section of the wire, and the wire was blown by the wind

inspections by the master are necessary, in against a steam pipe, whereby a servant re the discharge of his duty to his servants, ceived an electric shock and sustained injuries.

than when the appliance is a machine in conHeld, that there could be no recovery against the master because he had not inspected the

stant use, and dangerous to them when out wire; it appearing that the electric light sys of order. In this case the electric lighting tem had not been installed more than a few

system (including this incandescent wire) in months, and defendant not having been bound

the defendant company's factory had only to anticipate the probability of plaintiff's being so injured.

been installed for a few months. There is

nothing in the case to suggest that the inAction by Colton Fulton against the Grieb

sulating material which covered this wire Rubber Company. Verdict for plaintiff. Rule

would not have remained intact for years, to show cause made absolute.

unless injured by some outside agency. Nor Argued November term, 1902, before GUM

is there anything in the case which will jusMERE, C. J., and VAN SYCKEL, FORT,

tify the conclusion that the defendant, in the and PITNEY, JJ.

exercise of a reasonable prudence, should Linton Satterthwaite, for plaintiff. G. D. have anticipated the probability of its being W. Vroom and E. R. Walker, for defendant. so injured. For this reason, the failure of

54 A.-36

ness.

the defendant to inspect this wire between including the plaintiff, had gone to the suthe time of its installation and the time of perintendent's office with a demand for highthe plaintiff's accident was not negligence. er pay, and, in consequence, there was a de

For both reasí us, the rule to show cause lay of about 15 minutes in going to work. should be made absolute.

After leaving the superintendent's office, there was a scramble on the part of the men

in the gang for the first opportunity to get (69 N. J. L. 11)

down into the mine. In the scramble the SMITH v. THOMAS IRON CO.

plaintiff was left to the last, and when he (Supreme Court of New Jersey. March 18,

reached the level he was alone, and in dark1903.)

In going along the level, probably mis SERVANT-INJURIES-WARNINGS-CONTRIB

taking the first opening for the one further UTORY NEGLIGENCE.

on, and which he should have taken, he turn1. It was not necessary for the owners of a ed into it, fell down into the "stope," and mine to warn an employé of the dangers he was seriously injured. On these facts the might encounter if he wandered off the regular path in going to his work, where they furnished

trial court left it to the jury to determine, him a guide to take him to the place of work.

first, whether the injury resulted from any 2. A miner who had always before been con: negligence by the defendant in the performducted to his place of work by a guide, and who, ance of any duty which it owed to the plainon a particular occasion, finding that the guide had gone on before, attempted to reach the

tiff as his employer; and also whether the place alone, though the path was dark, was plaintiff, by any negligence on his part, con. guilty of contributory negligence as matter of tributed to the injury. The jury resolved law, and could not recover for injuries sustained by falling into a pit alongside the path.

both of these questions in favor of the plain

tiff. A rule to show cause was allowed, in Action by Patrick Smith against the Thom

order that it might be determined whether, as Iron Company. Verdict for plaintiff. On

upon the facts stated, the conclusion of the rule to show cause. Rule made absolute.

jury can be supported. Argued November term, 1902, before GUM

The defendant owed to the plaintiff the MERE, C. J., and VAN SYCKEL, FORT, duty of exercising reasonable care to proand PITNEY, JJ.

vide him with a safe means of passage to Edward A. & William T. Day, for plaintiff. and from his work. The contention of the William D. Wolfskeil and William Facken plaintiff is that the failure of the defendant thall, for defendant.

to call his attention to the existence of the

first opening to the right in the level, and GUMMERE, C. J. This is an action for the danger which might result from his not personal injury. The trial resulted in a ver avoiding it, was evidence of a failure on the dict for the plaintiff. The facts upon which part of the defendant to perform this duty. his right to recover was rested are accurate We do not think so. As has already been ly summarized in the brief of his counsel as stated, up to the time of the accident the follows: He was engaged by the defendant plaintiff had always been taken down into company to work as a miner in one of its the mine, to the place of his work, in the mines on March 2, 1900. The place where charge and care of Roberts. Having furhe was set to work was in the interior of the nished him with a guide, it was not necesmine. To reach this place it was necessary sary for the defendant to warn him of the for him to descend, by means of a ladder, dangers which he might encounter if he a shaft sunk vertically in the earth to a lev wandered off from the path; for, so long as el in the mine. After leaving the shaft, it he remained in the charge of his guide, he was necessary for him to go through the was safe. The only ground upon which relevel, which was dark, for a distance of 250 sponsibility for the plaintiff's accident can feet, and then turn to the right into an open be imposed upon the defendant coinpany is ing, down which a passage was had to a low that in performing the duty of guiding the er level, upon which was the place where he former to the place of his work, Roberts, the was set to work. At a point about 150 feet chargeman, was acting as the representative from the shaft there was another opening on of the company, and not as the fellow sery. the right of the level, which was the mouth ant of the plaintiff (Belleville Stone Co. v. of a "stope” or pit about 10 feet deep. The Mooney, 61 N. J. Law, 253, 39 Atl. 764, 39 plaintiff had been taken down into the mine, L. R. A. 834), and that his failure to perform to the place where he was set to work, on that duty on the day when the plaintiff was the first day, and on all subsequent trips, un injured was the proximate cause of the lattil the morning when he was injured, in the ter's accident. It is not necessary, howcharge and care of one Roberts, called a ever, for the determination of this case, to “chargeman." He had never been allowed stop to consider whether the facts referred to go alone. He had never had his attention to bring it within the principle laid down in called to the first opening to the right in the the Mooney Case, and establish the neglilevel, and had not been warned of the danger gence of the defendant; for, conceding that thereof. On the morning of the 10th of they do, still the plaintiff is barred from a March the men in the gang who were work recovery by his own negligence, on the eviing under the supervision of the chargeman, dence submitted. When be reached the bot

recover.

tom of the shaft be found that Roberts, whether or not the plaintiff was entitled to whose duty it was to pilot him to the place

This being so, there was no error where he was to work, had gone on before, in the refusal of the trial judge to direct a leaving him alone. The level along which verdict for the defendant. his path lay was in darkness. Having no We find no error in the charge of the court knowledge of the dangers which he might as delivered, nor in its refusal to charge cerincur if he should stray from the path, with tain of the requests submitted to it on beno one to guide him, without sufficient light balf of the defendant. to illumine it, he attempted the foolhardy The judgment below should be affirmed. experiment of finding his way, in the dark. ness, to the place of his work, without assistance. That in doing this he exhibited a

(69 N. J. L. 223) reckless disregard of his own safety seems

BAKER V. BANCROFT. too plain for argument.

(Supreme Court of New Jersey. Feb. 25, The rule to show cause should be made ab

1903.) solute.

WITNESSES-COMPETENCY-ACTION AGAINST

EXECUTOR.

1. Under the Evidence Act, P. L. 1900, p. 363, (69 N. J. L. 219)

8 4, making illegal any testimony given by a parVOGEL V. NORTH JERSEY ST. RY. CO. ty to an action as to any transactions with a

testator represented in such action, save on cer(Supreme Court of New Jersey. Feb. 25, tain conditions, includes the testimony of plain1903.)

tiff in an action against an executor for plain

tiff's services as nurse to testator. INJURY TO CHILD-SUI JURIS-CONTRIBUTORY NEGLIGENCE-ALLOWING CASE

Action by Dorcas Baker against Charles T. TO BE OPENED.

Bancroft, as executor, etc. Judgment for 1. Whether a child seven years old, run over plaintiff. Rule to show cause made absolute. by a street car, was sui juris, and, if so, wheth

Argued November term, 1902, before GUMer, considering his years, he was guilty of contributory negligence, are questions for the jury. MERE, C. J., and VAN SYCKEL, FORT,

2. Allowing plaintiff, after closing his case, to and PITNEY, JJ. open it and introduce evidence, is matter of discretion, and not reviewable.

Howard Carrow, for plaintiff. John W.

Wescott, for defendant.
Error to Circuit Court, Essex County.
Action by Joseph Vogel against the North

PER CURIAM. The plaintiff sues to reJersey Street Railway Company. Judgment

cover for services rendered by her as nurse for plaintiff. Defendant brings error. Af

to the defendant's testator. She was sworn firmed.

as a witness in her own behalf, and was perArgued November term, 1902, before GUM

mitted to testify, against objection, to variMERE, C. J., and VAN SYCKEL, FORT,

ous services rendered by her to him, made and PITNEY, JJ.,

necessary by his illness. Chauncey H. Beasley, for plaintiff in error. The proviso contained in the fourth section Samuel Kalisch, for defendant in error. of the evidence act, as revised in 1900 (P. L.

1900, p. 363), makes illegal testimony given PER CURIAM. The defendant in error, by any party to an action as to any transthe plaintiff below, sued to recover for per actions with or statements by any testator sonal injuries received by him by being run or intestate represented in such action, exover by a car of the defendant company. At cept upon conditions which were not present the close of the plaintiff's case there was a in this case. That services rendered by the motion to nonsuit him on the ground that he plaintiff as nurse to the testator of the dewas sui juris and was guilty of contributory fendant are transactions with such testator negligence. The court refused to nonsuit, within the meaning of this statutory proviand this is assigned as error. We think the sion was decided by this court in the case of nonsuit was properly refused. The plaintiff Dickerson v. Payne, 66 N. J. Law, 35, 48 Atl. was a little over seven years old. Whether

528. he was or was not sui juris was a question The admission of this testimony was harmfor the jury. So, too, it was for the jury to ful error. The rule to show cause should be say, even if they found him to be sui juris, made absolute. whether, taking into consideration his tender years, he was guilty of contributory negli

(69 N. J. L. 227) gence.

HATCHER V. PENNSYLVANIA R. CO. It is further alleged for error that the trial court, after the plaintiff had closed his case,

(Supreme Court of New Jersey. Feb. 25,

1903.) permitted the case to be opened, and further

INJURY TO PASSENGER-NEGLIGENCE–ILVI. evidence introduced on his behalf. Such ac

DENCE-SETTING ASIDE VERDICT. tion on the part of the trial court is purely 1. A passenger's story as to how he was indiscretionary, and affords no ground for re jured being entirely uncorroborated, and the view.:

overwhelming weight of the testimony showing As the evidence stood at the close of the

that he was injured solely because of his own

negligence, a verdict for him should be set case, it was clearly for the jury to determine aside.

Action by Reuben R. Hatcher against the tion of the deceased member in permitting L’ennsylvania Railroad Company. Heard on his dues to remain in arrears and unpaid for rule to show cause. Rule made absolute. a period of 20 weeks preceding his death all

Argued November term, 1902, before GUM rights in the benefit certificate had been forMERE, O. J., and VAN SYCKEL, FORT, feited by force of article 9 of the constituand PITNEY, JJ.

tion of the council, which provided that “a John T. Dunn, for plaintiff. Alan E.

member of this council who is thirteen weeks Strong, for defendant.

or more in arrears for weekly dues, forfeits

all his rights and privileges, except that of PER CURIAM. The plaintiff was injured

being admitted to the council chamber durwhile alighting from a train of the defend

ing its session.” This defense was overruled ant conspany at its station at Elizabeth. His

by the trial judge on the ground that the

only plea filed by the defendant was that of story, as told upon the witness stand, is that after the train had come to a stop he general issue, and that no such defense could

be made under the plea. This ruling was went upon the platform of the car to alight, that before he had done so a brakeman push

clearly a proper one. Under the 126 ser ed him from the tr and that just as he

tion of our practice act (Gen. St. p. 2554), was pushed the train started up, and he was

where the plaintiff avers performance of thrown off. His story is entirely uncorrobo

conditions precedent generally, the defendant rated. The overwhelming weight of the tes

is not permitted to deny such averment untimony contradicts the plaintiff's story, and

less he specifies in his plea the particular shows that he was injured solely by reason

condition precedent the performance of which

he intends to contest. That this statutory of his own negligence; that he was not pushed off the train, but that he either stepped or

provision bars a beneficial society from avoid. jumped off while it was still in motion, and

ing liability on a benefit certificate on the before it had come to a standstill.

ground that the deceased member failed to The rule to show cause should be made ab

pay his assessments within the time required solute.

by its constitution and by-laws, unless such defense is specially pleaded, has been decided

by the Court of Errors and Appeals in the (69 N. J. L. 15)

cases of Supreme Assembly V. McDonald, VAN ALSTYNE V. FRANKLIN COUNCIL, 59 N. J. Law, 248, 35 Atl. 1061, and Ottawa NO. 41, J. O. U. A. M.

Tribe No. 15 v. Munter, 60 N. J. Law, 459, 38 (Supreme Court of New Jersey. Feb. 27,

Atl. 696. 1903.)

There being no error on the part of the BENEFIT INSURANCE-FORFEITURE OF CER

trial court, the judgment under review should TIFICATE-ACTIONS-PLEADINGS

be affirmed. GENERAL ISSUE. 1. Under Prac. Act, $ 126 (Gen. St. p. 2554), providing that, where plaintiff avers perform

(69 N. J. L. 220) ance of conditions precedent generally, defend.

ROSENGARTEN Y CENTRAL R. CO. OF ant shall not be permitted to deny such averment unless he specifies the particular condition

NEW JERSEY. precedent the performance of which he intends

(Supreme Court of New Jersey. Feb. 25, to contest, a defense of forfeiture of a benefit certificate for nonpayment of assessments with

1903.) in the time required was not available under the WITHDRAWAL OF JURORS-NEW TRIAL. general issue.

1. Withdrawal of a juror by direction of the Error to Union Circuit Court.

court produces a mistrial, so that, there not Action by William Van Alstyne against rected.

having been any trial, a new trial cannot be diFranklin Council, No. 41, Junior Order of the United American Mechanics. From a judg.

Action by Samuel G. Rosengarten against ment in favor of plaintiff, defendant brings

the Central Railroad Company of New Jererror. Affirined.

sey. Heard on rule allowed to defendant to

show cause. Rule discharged. Argued November term, 1902, before GUMMERE, C, J., and VAN SYCKEL, FORT, and

Argued November term, 1902, before GUMPITNEY, JJ.

MERE, C. J., and VAN SYCKEL, FORT,

and PITNEY, JJ. Fergus A. Dennis, for plaintiff in error. George W. Moy, for defendant in error.

Joseph H. Gaskill, for the rule. John W.

Wescott and Herbert A. Drake, opposed. GUMMERE, C. J. This action was brought

PER CURIAM. This was

action to recover the sum of $250 death benefits due from the defendant, a subordinate council

brought by the plaintiff to recover damages

for the destruction of his growing timber, of the Junior Order of the United American Mechanics, to the plaintiff, as the beneficiary grass, etc., by fire communicated from one of Harry B. Van Alstyne, a deceased mem

of the engines of the defendant company.

At the close of the plaintiff's case, defendber of said council. The council at the trial set up as a defense that by reason of the ac.

ant's counsel moved for nonsuit upon the

ground that the proofs submitted did not cor1. See Insurance, vol. 28, Cent. Dig. $ 1998. respond with the allegations contained in the

an

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