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filed in the office of the Secretary of State and acknowledged "as are deeds entitled to on the same day; also a location of the route be recorded." In respect to the absence of of the road, and a map, filed December 7, proof that those who signed the consents 1899; also an ordinance of the township owned the requisite number of lineal feet, committee of the township of Hamilton, nothing appears but the statement in the granting permission to the said company to written consents of the number of feet ownlay its road along the highway indicated in ed by each consenting owner. As the filing the description and shown on the map of its of the requisite consent was a condition preroute, and acceptance by the company and cedent to the power of the township comthe officers of the company, filed January 23, mittee to pass the ordinance, I think that the 1900, and also the written consents of certain fact of the passage of the ordinance should owners of land abutting on the highway. be regarded as evidence that the committee The evidence offered in respect to the organ found that the consents filed were, in this reization of the road of the petitioners is a spect, in accordance with the statute. The description of the road, with a map attached, committee could resort to whatever evidence filed in the Secretary of State's office on Au it wished to satisfy itself of that fact. It is gust 23, 1901; an ordinance of the township true that the proceedings were of a statutory committee of the township of Hamilton, body with a limited power, yet, so long as granting permission to use the highway; ac nothing appears in the record of their proceptances by the company and the officers of ceedings to exhibit an absence of power to the company of the ordinance, filed in the act, and inasmuch as the statute requires no office of the Secretary of State October 9, record of the decision of the committee in 1901, and consents of abutting owners along respect to the fact that the owners of the rethe highway.

quired feet have consented, it may be asIt is insisted that the existence of the orig. sumed, until the contrary is shown, that this inal road is not proved, because the consent fact was satisfactorily proven to exist. by the township to the laying of the original The remaining objection, however, is based road was invalid, in that there was not filed upon what appears in evidence, viz., that the with the township clerk the consent in writ consents which were filed were neither sealing of the owner or owners of at least one ed nor acknowledged as sealed instruments. half in amount in lineal feet of the property The statute requires that the consents shall fronting on the street or highway upon which be not merely acknowledged, but shall be the road was to run. The act controlling executed "as are deeds entitled to be record. this matter is to be found in P. L. 1896, p. ed." The word "consent" includes those 329. This act provides that no street rail made by the owner himself as well as those road shall be constructed upon any street or made by his attorney in fact, or by an exechighway except upon the consent of the gov utor or trustee holding the legal title or haverning body of such municipality, town, ing a power to sell abutting lands. Now, it township, village, or borough. The act con is common learning that one of the requitains a proviso as follows: “That such per sites of a deed is a seal. The grant of an mission to construct, maintain and operate a easement requires a seal. It is, of course, street railway shall in no case be granted in true that equity can treat an unsealed inwhole or in part until there shall be filed strument purporting to be a deed or grant with the clerk of such governing body or as an agreement creating an equitable inother equivalent officer, the consent in writ terest in or a lien upon the land which is ing of the owner or owners of at least one the subject-matter dealt with by the imperhalf in amount in lineal feet of property fect instrument. That rule, however, is infronting on the streets, highways, avenues, applicable in this proceeding; for, while the and other public places, or upon the part of method of crossing is put by the Legislature the street or streets, highway or highways, under the supervision of a court of equity, a venue or avenues and other public place or yet one of the statutory conditions upon places, through or upon which permission to which the right of the trolley road to cross construct, operate and maintain a street rail is that the petitioning road has not merely way is asked, and any such consent may be the consent of a certain proportion of abutsigned by an attorney in fact, thereunto du ting owners, but that the consents shall be ly authorized by any owner, or by an execu evidenced in a form fixed by the statute. tor or trustee holding the legal title or ha v To make these consents provable, the statute ing power of sale, which consent shall be requires that they shall be executed and ac. executed and acknowledged as are deeds en knowledged as deeds. These were not. And titled to be recorded.”

so the filed consents were not provable as It is first objected that it does not appear such, and at the time of the passing of the that those purporting to give their consents, ordinance granting permission to the origifiled in the township clerk's office, owned the nal traction company the condition was as if requisite number of feet required by the stat no legal consents had been filed with the ute; and it is objected, secondly, that the clerk. It follows that it is not proved tbat consents are not executed in accordance with a legal road existed, of which the present the statutory requirements, the statute re road is an extension. quiring that the consents shall be executed Again, the same objection in respect to the

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legality of the consents is raised in regard to body, or public authority shall also be rethe validity of the petitioning road. The quired. Then follows a provision requiring consents of the abutting owners last men that such consent shall be granted only upon tioned are on one paper, having seals attach notice, to be given in the same manner as ed to the names of the landowners, but the provided for in respect to notices to be given certificate of acknowled nt with one ex upon application for the consent of municiception states merely that the grantors sign- palities. It is under this provision that the ed and delivered the same as their voluntary application was made to the board of chosen act and deed. Had the certificates stated freeholders as the board having control of that the owners “acknowledged that they ex the road over which this proposed trolley is ecuted the instrument as their voluntary act to be constructed. and deed,” the acknowledgment would have It seems entirely clear that the consent of been good, although sealing was unmention. the abutters is required to be only once giyed. Sharp v. Hamilton, 12 N. J. Law, 109. en, namely, before the municipal authorities I think that these acknowledgments are suf mentioned in the first section of the act of ficient. The signers acknowledged that they 1896 grants its permission. The provision signed the consents, and delivered them as for the consent of the abutting owners is their voluntary act and deed. A deed im referable to the action of the governing body ports a sealing, and these consents were ac of cities, towns, townships, villages, and bortually sealed.

oughs. The only condition attached to the It is also objected that consents should granting of the latter permission is that nohave been filed with the county clerk as a tice shall have been given in the same mancondition precedent to the granting by the as provided for in the first section. board of chosen freeholders of Mercer coun While expressly providing for the same noty permission to place this road upon a ma tices, it is entirely silent as to any consent cadamized county road. The act of 1894 of abutting owners in the manner required provided that no street railroad shall be con in the first section. The express requirestructed upon a street or highway in a mu ments of notice, coupled with silence in renicipality, town, township, village, or bor gard to consent, excluded the idea of an ab. ough except upon the consent of the govern surd requirement that two consents of the ing body of such municipality. It provides same abutting owners shall be executed and that such consents shall not be granted by filed before a valid grant of permission can the governing body of any such municipality, be given by the county. etc., until consents by a certain proportion of It is, again, objected that there is no comlineal feet owned by abutters upon the road pliance with the statutory requirement that shall have been filed in the office of the clerk before the beginning or construction of any of the municipality, etc. The act of 1896, extension or new trolley line the corporation p. 329, clearly supersedes the act of 1894, p. shall file in the office of the Secretary of 374, as it covers all its provisions respecting State a description of the route of such exconsents. This act provides that no street tension, or new line, showing the termini, torailroad shall be constructed upon any street gether with a map exhibiting the same with or highway in any city, town, township, vil the courses and distances thereof. Upon lage, or borough except upon the consent of the map filed by the present petitioners is the governing body of such municipality, marked a distance from a southerly tertown, township, village, or borough. The minus, running northerly 1,462 feet, more act then provides for the consent of the abut

or less.

The description filed omits the ting owners in the manner already exhibited. words "more or less," and described the It is perceived that the word "city" is sub southerly terminus at a point in the road stituted in the act of 1896 for the word “mu

known as “Crosswicks,” and Trenton turnnicipality” in the act of 1894; and when the

pike, where the road leading from Groveword “municipality” is afterwards used, fol. ville to Hamilton Square intersects the same, lowed by the other specified instances, the and runs thence a certain course 1,462 feet word undoubtedly refers to cities. It is the to a point in said highway, which point is governing body of such cities, towns, town the northerly terminus. I think that the ships, villages, and boroughs with which all words "more or less" upon the map may be consents to the required permission shall rejected as surplusage. They have no sighave been filed. All this is to be found in nificance whatever when the distance is the the first section of the act of 1896. The sec only indication of the point where the road ond section of the act deals with the man. stops. I think a point 1,462 feet from the ner of obtaining permission to change the southerly terminus is the northerly terminus motive power used by a street railroad. of the present road, and sufficiently appears, Then follows a proviso that if any board, both in the written description and upon the body, or public authority, other than the gov map. erning body of such municipality, town, town. These conclusions still leave wanting the ship, village, or borough shall have control provable consents by the abutting owners to of any of the streets or highways over which the laying of the road of which this is an the proposed street railroad is to be con extension. There is, however, offered in evistructed, etc., the consent of such board, dence the record of a proceeding upon cer

tiorari in which the Pennsylvania Railroad This renders it unnecessary to consider the Company was prosecutor and the petitioner question what the posture of affairs would was a defendant. The writ seems to have have been had the Pennsylvania Railroad brought up the ordinance passed by the Company been estopped, in view of the fact township committee of Hamilton township, that the United New Jersey Railroad & giving the petitioners permission to lay its Canal Company, which was not a party to road upon the highway within the township. the certiorari proceedings, is a respondent in This ordinance was adjudged by the Su this cause. Unless, by its lease to the Pennpreme Court and the Court of Errors upon sylvania Railroad Company, it stripped ita writ of error to be a valid ordinance. self of all substantial interest in the road, This judgment would conclude the two par and passed the same to the Pennsylvania ties mentioned in any proceeding brought di Railroad Company, it, not being estopped rectly to test the validity of that ordinance. by the certiorari proceedings, would occupy The doctrine of res judicata, however, dif a position to insist upon all the objections fers, when applied to a new proceeding for raised. the same, or part of the same, cause of ac I am therefore constrained to the conclution, and when applied to a different cause sion that by reason of the want of provable of action. In the former instance every filed consents of the abutting owners along thing that could have made for the plain the road of which the petitioner's road is an tiff or for the defendant is settled by the extension, the petitioner has no standing to first judgment. In the latter instance only ask for the order now sought. those issues actually presented and decided are concluded. City of Paterson v. Baker, 51 N. J. Eq. 50, 26 Atl. 324; Clark Thread

(68 N. J. L. 3430 Company v. William Clark Company, 55 N. FIELDERS V. NORTH JERSEY ST. RY. J. Eq. 658-662, 37 Atl. 599. The present pro

CO. ceeding must be regarded, not as a direct (Court of Errors aud Appeals of New Jersey. attempt to litigate the validity of the or

March 2, 1903.) dinance, but as a new proceeding, in which

Dissenting opinion. For majority opinion, the validity of the ordinance and the exist

see 53 Atl. 404. ence of certain conditions essential to the validity of the ordinance come into ques FORT, J. In this case I am unable to tion. Therefore the only points upon which agree with the majority of the court. I the Pennsylvania Railroad Company is es should be willing to affirm upon the opintopped are those actually litigated in the cer ion of Mr. Justice COLLINS in the Supreme tiorari proceedings. The issue actually tried Court, reported in 50 Atl. 533. The concluin that proceeding was whether the ordi sion reached by the Supreme Court in that nance was good as against the reasons filed opinion is, in my judgment, based upon a for its vacation. In North River Meadow proper application of the police power, and Company V. Shrewsbury Church, 22 N. J. also upon a wise public policy.

I agree Law, 424, 53 Am. Rep. 258, an action of debt with Mr. Justice PITYEY in his opinion was brought to collect an assessment imposed in this case, wherein be declares that "the upon lands belonging to the church. The

plaintiff at the time of her injury was not Meadow Company, in support of the assess in the exercise of her riglits as a passenger ment, put in evidence the record of a pro in the act of leaving the defendant's car," ceeding in certiorari prosecuted by the and that, if she can recover, it is only upon church to test the legality of the assessment. the theory that the defendant, by a failure In this proceeding the assessment had been

to repair the hole in the highway lying beheld to be legal. The Supreme Court held tween its tracks, had failed to perform some that in the subsequent action to collect the

duty which it owed to the plaintiff as one assessment the church was estopped from of the public. It is misleading, in my view, asserting that the assessment was invalid. to refer to this case as one in which the It was so held upon the ground that the rea failure of the defendant is a failure to repair sons assigned by the church for vacating the the surface of the street. The hole in the assessment in the certiorari proceeding em highway was at a street crossing, and abut. braced all the points suggested on the trial ting upon the rail of the track, or its foundaof the later action. It is true that in the tion, and the failure to repair at this point certiorari proceedings brought to test the or was a failure to repair its tracks, within the dinance in this case general, as well as well-recognized principles of law applicable special, reasons were assigned for its vaca to the duty to repair tracks, laid upon a railtion; but the court was not obliged, and un way company having a right to lay tracks der its practice would not, notice the for in the public streets. The majority opinion mer, and in fact did not do so.

in this case concedes that "it is familiar law Inasmuch as the want of filed consents by that a railway company having the right the abutting owners were not assigned as to lay tracks in a public street is bound by grounds of objection to the ordinance, the the general principles of the common law, Pennsylvania Railroad Company is not es and, without either a specific statute or ortopped from now setting up this objection, dinance, or a contractual obligation, to lay

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its tracks in a proper manner, and to keep way Company this court held that a provi. them in a proper state of repair." This prin sion of the charter of the Erie Railway comciple thus stated is clearly sustained by 2 pany which required it to keep its crossings Thom. on Veg. (2 Ed.) $ 358, cited in that at public highways secure for travel laid opinion. I am at a loss to perceive how the upon it a duty to the public, and, for deduty to repair the hole between the tracks fault in so doing, it was liable in damages was not one of the duties to repair the track to a person injured because of its neglect of which was incumbent upon the defendant this duty. The principle of that case obcompany under its implied obligation to so tains where any duty is imposed by statute, construct and maintain the rails of its track or an ordinance lawfully passed under statas that they should be free from dangers to utory authority; and it matters not whether persons lawfully using the highway. I re the duty is in a special charter, a general gard the tracks as contemplating all between act, or a lawful ordinance. Sonn V. Erie the rails as laid in the public bighway.

Railway Company, 66 N. J. Law, 428, 49 The defendant's counsel, at the hearing and Atl. 458. in his brief, admitted that, if the defendant In the majority opinion there is a discuscompany did not have actual knowledge of sion of the question as to whether the ordithe condition of its tracks at the point in nance of the city of Newark which attempts guestion, it was chargeable with such knowl. to impose a duty upon the defendant comedge, because of the length of time the track pany to pave its tracks is not void because had been in the condition it was at the time such an imposition is, in effect, taxation. I the plaintiff was injured; and, applying the shall not discuss that question, farther than principle of law stated in the majority opin to express dissent from that view, for the ion to the facts in this case, that, “if the de reason that that question is not, in my judgfendant was under an absolute duty to repair ment, in this case for decision. the pavement, it was at the same time under I am authorized to say that Justice HENa duty to observe its condition," it seems DRICKSON and Judge BOGERT concur in impossible to escape the conclusion arrived the view here expressed. at by the Supreme Court.

I vote to affirm. It is held by the Supreme Court, and not controverted by the majority opinion in this

VREDENBURGH, J. I concur in the court, that the ordinance of the city of dissenting opinion of Mr. Justice FORT in Newark in evidence in this case, and upon this case as a whole, but desire to especialwhich the plaintiff in part relied, requires ly emphasize my adherence to the doctrine the repairing by the defendant company be therein contained wherein it is said that " tween its tracks, and that the charter of city charter, or an ordinance passed under it, the city of Newark, passed in 1836, and cited is not for the benefit of the city, per se, but in the opinion of the Supreme Court, under is for the protection of the traveling public. the authority of which said ordinance was Especially must this be true with regard to adopted, was in force at the time the de a provision with relation to the paving and fendant company took over the street rail repaving of that portion of the highway lying way which bad its tracks upon Mulberry between the rails constituting the tracks of street in the city of Newark, and also at the the company.

The city does not pave for time of the incorporation of the defendant its own purposes, per se. Paving is for the company. Where a street railway company use of the public.” takes a franchise from a municipality to op

For these reasons, I also vote to affirm. erate a street railway within the limits of such municipality, it takes it subject to the

(69 N. J. L. 229) power of such municipality to regulate, under such franchise, its use of the streets, and its

DUYSTER V. CRAWFORD. duty to pave and repair between the tracks, (Supreme Court of New Jersey. Feb. 24, as expressly or impliedly authorized by the

1903.) inunicipal charter. I am also clear in my APPEAL-BRIEF NOT SUBMITTED BY ATTORview that such a provision of a city charter,

NEY-STIPULATION.

1. The Supreme Court will not consider a or of an ordinance passed under it, is not

brief submitted on behalf of a party in error for the benefit of the city, per se, but is for by a member of the bar who has not been lithe protection of the traveling public.

Es

censed to practice as counselor at law, notwithpecially must this be true with regard to a

standing a stipulation to submit the cause up

ou briefs. provision with relation to the paving and repairing of that portion of the highway lying

Error to Circuit Court, Hudson County. between the rails constituting the tracks of

Action by George F. Duyster against Thethe company. The city does not pave for

ron C. Crawford. Judgment for plaintiff, its own purposes, per se. Paving is for the

and defendant brings error. use of the public-both those of the public

Argued November term, 1902, before GUMwho pass over it with horses and carriages,

MERE, C. J., and VAN SYCKEL, FORT, and and those who pass on foot.

A corporate PITNEY, JJ. entity does not travel, and does not need Theodore Rurode, for plaintiff in error, paved streets. In Sonn V. the Erie Rail George S. Hobart, for defendant in error.

PER CURIAM. On the call of the list at The night was very dark and rainy. He was the opening of the term, it was announced

struck and injured by a trolley car coming from

the east. In that direction the avenue was that this cause would be submitted upon

straight for a long distance. The car car briefs. Pursuant to this announcement, cop ried a headlight at its top, and its interior was ies of the printed case and briefs were filed

also lighted. From the configuration of the with the sergeant at arms. It appears, bow

ground, all the lights of a car thus approacb

ing could be seen for 650 or 700 feet, and the ever, upon an inspection of the brief submit

headlight for a much greater distance. He tested on behalf of the plaintiff in error, that it tified that when he started to cross he did not is presented by a member of the bar who has see the car, but before he succeeded in crossing not as yet been licensed to practice as a

he was struck, though he “stepped as quick as

he could." Held that, upon plaintiff's case, his counselor at law. This court will not receive

negligence contributing to his injury so clearly such a brief. The cause stands, therefore, appeared that it was error to submit the case as if, notwithstanding the stipulation to sub

to the jury. mit it upon briefs under the rule, the plain

(Syllabus by the Court.) tiff in error had entirely failed to comply Error to Circuit Court, Union County. with that stipulation. The defendant in er Action by Daniel Brown against the Eliza. ror is entitled to proceed as if no brief bad beth, Plainfield & Central Jersey Railroad been filed by his adversary.

Company. Judgment for plaintiff, and defendant brings error. Reversed.

Frank Bergen, for plaintiff in error. Jere

miah A. Kiernan, for defendant in error. In ro CLAUS' WILL. (Prerogative Court of New Jersey. Jan. 27, MAGIE, Ch. The record brought up by 1903.)

this writ of error discloses a judgment in faCOSTS ON APPEAL-PROBATE OF WILL. vor of the plaintiff in an action brought to re1. Where the orphans' court decided that con

cover compensation for injuries sustained by testant, on the probate of a will, had reasonable cause for the contest, and ordered the

him by reason of a collision with a trolley costs to be paid out of the estate of testator,

car of the defendant. The judgment is asand the proponent of the will did not appeal sailed on the single ground that the tria) therefrom, but no reasonable cause existed for

judge erred in refusing to nonsuit the plainprotracting the contest by an appeal to the

tiff. prerogative court, the costs and expenses of

It appears by the bill of exceptions such an appeal will not be paid from the estate. that the motion to nonsuit was made upon Appeal from Orphans' Court, Camden

two grounds: (1) That there was a failure County.

of evidence to justify a finding by the jury In the matter of the alleged last will and

that the motorman engaged in running the testament of William F. Claus, deceased.

trolley car which struck plaintiff was guilty From a decree admitting the will to probate,

of any neglect of the duty which the comcontestant appeals. Affirmed.

pany owed to a pedestrian crossing the track

of the company under the circumstances Spencer Simpson, for appellant. Florance proved in the case; and (2) that, upon the G. Toram and D. V. Summerill, for appellee.

plaintiff's testimony, his own negligence con

tributing to his injury was conclusively, and MAGIE. Ordinary. I find nothing in the

as a matter of law, esta blished, so that a proofs before the orphans' court to justify a

verdict in his favor lacked the support of reversal of the decree admitting the will to

evidence. It has been deemed necessary to probate. It must be affirmed.

consider only the second ground on which The orphans' court concluded that the ap

the motion was based. pellant had reasonable cause for contesting

In dealing with the questions thus prethe validity of the will, and ordered the costs

sented, it must be assumed that the jury and expenses of the litigation on her part

were entitled to give credence to the testito be paid out of the estate of testator. The proponents of the will have not appealed

mony of the plaintiff and the witnesses pro

duced by him, and to draw therefrom all therefrom, and the order, as made, must

reasonable inferences favorable to his constand. But I find no reasonable cause for

tention. The question is whether, upon such protracting this contest by an appeal to this

assumption, a verdict for the plaintiff is court, and will decline to direct the costs and expenses of appellant in this court to be paid

supportable. The circumstances disclosed

by the evidence thus given are these: The from the esta te.

collision took place after 7 o'clock in the

evening of February 12th. The evening was (68 N. J. L. 618)

very dark, and it was raining. Plaintiff had BROWN V. ELIZABETH, P. & C. J. R. CO. left his work, and was going toward his (Court of Errors and Appeals of New Jersey. home on foot. He had reached a public March 2, 1903.)

street called "South Avenue," and was passBTREET RAILROADS-INJURY TO PEDESTRIAN ing along it on the south side, in an easterly -CONTRIBUTORY NEGLIGENCE.

direction, when he, for reasons which be 1. Plaintiff attempted to cross, on foot, trolley tracks laid in the middle of an avenue with

gave, crossed, or attempted to cross, to the which he was familiar. The time was after northerly side of the avenue. In doing this, 7 o'clock in the evening of February 12th, he was obliged to cross the tracks of the

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