verse effect of the testimony of the witness [ was carried on, and that he was the employcalled by the state in reliance on his statements previously made to the prosecutor of the pleas, who was surprised by the adverse testimony of the witness. It was not compe tent as proof of the truth of the original statement but that the state had been misled in introducing the evidence. We think the evidence was not material, but it had no effect on the question of the guilt or innocence of the defendant, and that there was no error in permitting the cross-examination complained of. [6] 3. That a witness who had been indicted as owner of the premises, and permitted gambling there, was allowed to testify that defendant had promised to help raise a fund necessary to prosecute his appeal if he should be convicted. The Supreme Court held that this testimony was relevant, and with this we agree, as showing defendant's connection with conducting the disorderly house. er of the persons engaged in assisting him in conducting gambling. These were material facts tending to show defendant's guilt, and would do so conclusively if the jury believed the testimony. The plaintiff in error argues that he might admit the facts proven against him; nevertheless they would not be conclusive of his guilt. This argument is fallacious under the above-stated facts. Nor is it sufficient, as plaintiff in error argues, that, as he had denied his guilt by pleading not guilty to the indictment, he was entitled on the trial to the benefit of such a denial to the same extent as if he had testified in contradiction of all material facts; but that is not so, because the plea was not under oath, nor was he subject to any cross-examination. It is also argued in support of this writ that the court erroneously instructed the jury upon the absence of proof to controvert the case made by the state, and the failure of counsel to make any argument on the facts. [2] 4. That the defendant offered to sub- What the court said, thus challenged, was mit the case to the jury at the close of the no instruction to the jury, but a mere comstate's case without argument, and having ment on the situation of the case with which done this it was error to allow the prosecu- the jury had to deal, for it was true that tor to sum up the case to the jury. We the defendant had not testified on his own bethink this was not error. It amounted to half nor offered any witness, and his counsel nothing more than a fuller opening to which, had declined to make any argument upon the under such circumstances, the defendant facts. This was not an instruction or rulmight have replied subject to further arguing, and there was no error available on this ment by the party holding the affirmative. writ. New York & Long Branch Co. v. Garrity, 63 N. J. Law, 50, 42 Atl. 842. Whether such a proceeding shall be allowed in a given case is largely a matter addressed to the discretion of the trial court, and we do not think it was abused in this case. This court said, in Hackney v. Del. & Atl. Tel. Co., 69 N. J. Law, 335, 341, 55 Atl. 252, 254: "We think the true rule is stated in the case of Garrity v. New York & Long Branch Co., 34 Vroom, 50." In the case thus approved (New York & L. B. R. Co. v. Garrity, 63 N. J. Law, 50, 42 Atl. 842) the court said: "It is always in the discretion of the court, when such a case arises, to permit the making of a second argument, * * * or rather, to state it more accurately, to make a fuller and more complete opening." [3] 5. That the court erred in its charge relating to the failure of the defendant to offer himself as a witness. What the court said was: "When the accused is upon trial and the evidence tends to establish facts, which, if true, would be conclusive of his guilt of the charges against him, and he can disprove it by his own oath as a witness, if the fact be not true, then his silence would justify a strong inference that he could not deny the charges.” There was proof that the defendant was in 6. That the court improperly refused to charge as requested: "The fact that the defendant fails to testify or fails to produce any witness, but rests his case upon the evidence produced by the state, does not raise any presumption of guilt. Notwithstanding such failure, the defendant is entitled to the presumption of innocence, which must continue until you have found him guilty, beyond a reasonable doubt, from the facts and testimony produced on the trial." This request involved two distinct propositions of law, and if either was improper it was not error to refuse it. The defendant that where defendant rests his case upon the was not entitled to have the jury instructed evidence produced by the state no presumption of guilt arises. The rule in this state is that, in a proper case, the failure of the defendant to testify may be commented on as tending to establish facts which would justify a strong inference that defendant could not deny the charges. The request in any case must be applied to the facts, and in this case, if the facts proven by the state justify an inference of guilt, the presumption of the defendant declined to testify and deny innocence would not remain simply because facts conclusively showing his guilt. As to the proposition relating to the presumption of innocence, that was fully charged by the (113 A.) 7. That the court improperly instructed the mere customers of the establishment, I the jury as follows: "Now, the defendant comes into the trial with the presumption of innocence, and the jury is not to find him guilty unless they are satisfied of his guilt, as the law says, beyond a reasonable doubt." The criticism advanced is that this instruction must be taken in connection with the request last dealt with, but that is not the proper view to take of the relation of the instruction to the request; what the court was then dealing with was the presumption of innocence to which the defendant was entitled, and the legal rule was properly stated. am willing to say to you that any one who was there simply as a customer was an accomplice. detectives, who were there for the purpose of But you cannot very well say that these private ascertaining whether gambling was going on, and participated in the practice to make sure that it was being run as a disorderly house, ought to be classed as accomplices." The point made by the plaintiff in error is that the effect of this charge was to place the evidence of detectives upon a higher plane than the evidence of customers. The answer to this is that, if we assume that the detectives were accomplices, nevertheless the jury may convict upon their testi [4] 8. That the court improperly defined mony without corroboration if they believe reasonable doubt as follows: "When a jury, after they have carefully considered all the evidence and rejected what they consider unreliable and adopted what they consider reliable, find that they are not convinced of the guilt of the accused, then it may be said that a reasonable doubt exists and that the defendant is entitled to the benefit of it. If they are, under those circumstances, convinced of his guilt, and there is no reasonable doubt, then they ought to find him guilty." The plaintiff in error argues that the effect of this charge was to instruct the jury that it was only when, after a consideration of the evidence, the jury are not convinced of guilt, that a reasonable doubt may be said to exist. But this argument omits consideration of the concluding clause of the paragraph, which is that if the jury "are, under those circumstances, convinced of his guilt, and there is no reasonable doubt, then they ought to find him guilty," which clearly means that if the jury are convinced, beyond a reasonable doubt, of guilt, then they ought to so find. It is not true, as the plaintiff in error argues, that under this charge reasonable doubt has no effect until the jury are convinced of the defendant's guilt, for they could not have then followed the entire in struction, and be convinced of his guilt, if they had a reasonable doubt of it. their testimony, and a verdict based upon the uncorroborated testimony of the accomplices would be a legal verdict, although it is customary to instruct the jury to accept the uncorroborated testimony of an accomplice with caution, as he might, for his own protection, throw the blame from his own shoulders to that of another. Such caution was not given in this case; but we are merely dealing with the request, which did not include any suggestion that the jury should be so cautioned; all the request contained was that the jury should never convict upon the evidence of an accomplice unless corroborated. This the court was not bound to charge, although it did, and it was not requested to caution the jury regarding the acceptance of the testimony uncorroborated. 11. That the court erred in its charge respecting the bill of particulars. The court, in substance, charged that, while the defendant should not be convicted upon a fact which was without the scope of the bill of particulars, it was not necessary that they should find defendant guilty of everything charged in the bill, and by way of illustrafendant was the owner of the right to use tion stated that the bill charged that the dethe pavilion, and that during the time the alleged crime was committed was in possession of the defendant, but that it was not necessary to find both of these particulars, because it would be sufficient if they found that the defendant was the owner, or, if not, that it was in the possession of the defendant. The plaintiff in error argues that the bill of particulars was conjunctive and not disjunctive, and that the state was bound to prove both propositions. This we do not [5] 10. That the court refused to charge agree to, for the bill of particulars is not an as requested: 9. That the court erred in charging the jury by using arbitrary illustrations from which ownership and the relation of servant and employer might be implied. There is no merit in this objection, because what the court said on this subject was a mere comment on the evidence, and the jury were not instructed to accept the illustrations proof in the case. as "The jury are never to convict the defendant upon the evidence of an accomplice only, unless he is confirmed as to the particular person charged with the offense." To this the court responded: "That may be true, and I am willing to charge it. With respect to the testimony of indictment, and the particularity of the expressions required in an indictment does not apply to a bill of particulars. 12. That the charge, as a whole, was prejudicial to the defendant. If so broad a proposition as this can be considered, we find nothing in it so prejudicial as to justify supporting the assignment of error, and, as to the specifications of causes under section 136 of the Criminal Procedure Act, we do not find any such manifest wrong or injury which the defendant suffered as to require its application. The charge may be open to the criticisms that the trial judge was of opinion that the evidence indicated defendant's guilt, but, if so, that was not error. State v. Seifert, 86 N. J. Law, 706, 92 Atl. 345. Finding no injurious error available to defendant in the record, the judgment will be affirmed. Appeal from Supreme Court. Schlosstein & Steinhardt, of Newark (Frederic W. Schlosstein, of Newark, of counsel), for appellant. Lefferts S. Hoffman and Leonard J. Tynan, both of Newark, for respondent. GUMMERE, C. J. The appellant, Cather The CHANCELLOR and KALISCH and ine Savage, seeks by this action to recover TAYLOR, JJ., dissenting. SAVAGE v. PUBLIC SERVICE RY. CO. for personal injuries sustained by her while traveling as a passenger on a trolley car of the respondent company. The averment of the complaint upon which the liability of the respondent is predicated reads as follows: "That while a passenger as aforesaid she was standing on the rear platform of the car, about to enter the body of the said car, and was sud (Court of Errors and Appeals of New Jersey.denly jerked from her feet and thrown to the Feb. 28, 1921.) 1. Pleading 354 (1)—Passenger's allegation of negligence of carrier without particularization sufficient as against motion to strike. Passenger's complaint against the street railway, alleging that while she was standing on the rear platform of the car, about to enter body of car, she was suddenly jerked from her feet and thrown to the floor of car by the negligent operation thereof, held sufficient, on motion to strike for failure to disclose cause of action under Supreme Court Rules, No. 40, notwithstanding failure to allege particular in which the car was negligently operated. 2. Pleading 352-Distinction between "motion to strike for lack of certainty" and "motion to strike for failure to disclose cause of action" stated. The distinction between a motion to strike the declaration for lack of certainty under Practice Act, § 110, and a motion to strike for failure to disclose cause of action under Supreme Court Rules, No. 40, is the distinction which existed at common law between a special and a general demurrer; the former being directed at matters of form and the latter at matters of substance. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Motion to strike out.] 3. Pleading 360 (4)-Court will not consider proof on motion to strike complaint for fail ure to disclose cause of action. On motion to strike complaint for failure to disclose cause of action under Supreme Court Rules, No. 40, the court will not consider the matter of proof; the remedy for insufficiency of proof being a motion for nonsuit. floor of the car by the negligent operation thereof." The answer filed by the respondent de nied generally the facts set out in the complaint; and, by way of a further defense, averred that the portion of it which we have recited does not state facts sufficient to constitute a cause of action, and then reserved to the respondent the right to move at the trial of the suit to strike out the complaint for this reason. In due course the case came on to be tried before the court and a jury, and, immediately after the jury were sworn. counsel for the respondent, in the exercise of its reserved right, moved to strike out the complaint upon the ground that it did not set out a cause of action. At the conclusion of the arguments upon the motion the trial judge having first expressed himself as "being of the opinion that the said complaint disclosed no cause of action," ordered that it be struck out with costs. Judgment having been entered in accordance with this ruling, the present appeal was taken. The procedure followed by court and counsel was that prescribed by the Legislature in the year 1912 by rule 26 of the new Practice Act (now rule No. 40 of the Supreme Court). By that rule general demurrers were abolished, and, as a substitute therefor it was provided that "Any pleading may be struck out on motion on the ground that it discloses no cause of action, defense, or counterclaim respectively. The order made upon such motion is appealable after final judgment. In lieu of a motion to prop-strike out, the same objection * may be raised in the answering pleading, and may be disposed of at or after the trial." 4. Trial 109, 159-Motion for nonsuit Bergen and Williams, JJ., dissenting. [1] The question upon which the determination of this appeal depends is whether the complaint could have been successfully (113 A.) [2] It will be observed by a reading of these opinions which we have cited that, in each of them, although the declaration was held good on general demurrer, it was pointed out that they would each of them have been struck out, on motion for lack of certainty and failure to state the specific act of negligence which was charged against the defendant company or the particular employé responsible therefor. But the motion to strike out, referred to in these cases, was that provided by the twenty-fourth section of the act of March 17, 1855, entitled "An act to simplify the pleadings and practice in courts of law" (P. L. p. 295), as a substitute for the pleading then known as a special demurrer, and which was abolished by the twenty-third section of the same act. The twenty-fourth section of that statute now appears as section 110 of our present Practice Act (3 Comp. St. 1910, p. 4086), and declares that attacked by a general demurrer, upon the without any specification of what constitutground that it disclosed no cause of action: ed the negligence, or what employé was and we think that it must be answered in guilty of it, discloses the existence of a cause the negative. In the case of Central Rail- of action against the defendant, and will road Co. ads. Van Horn, 38 N. J. Law, 133, therefore be sustained as against a general 138, the defendant interposed a demurrer to demurrer. the second count of a declaration, which showed merely that the plaintiff was in one of the cars of the defendant company under a duty by it to carry her safely, and while there that she was "through the negligence, carelessness, and misdirection of the defendant and its agents and servants, thrown from and under the coaches of the said defend ant." It was held by the Supreme Court that, although this averment was so uncertain and insufficient in detail as to afford the defendant little, if any, information as to what the specific act of negligence was, or what agency of the company was responsible for it, it was clearly good on the general demurrer; the defect being one of form, and not of substance. In Breese v. Trenton Horse Railroad Co., 52 N. J. Law, 250, 253, 19 Atl. 204, a count, which stated in general terms that by the careless management of the car in a public street by the agents of the defendant it thereby ran over the body and arm of the plaintiff, was held good on general demurrer. In Race v. Easton & Amboy Railroad Co., 62 N. J. Law, 536, 41 Atl. 710, a count in a declaration, simply averring, in effect, that by reason of the negligent and improper running of defendant's railroad train, and blowing of the whistle on its locomotive, a horse which was being driven on the highway by the plaintiff became frightened and overturned the wagon, and that plaintiff was thereby thrown out and injured, although not specific enough for a proper pleading, was permitted to stand as against a general demurrer. Ferguson v. Western Union Telegraph Co., 64 N. J. Law, 222, 44 Atl. 849, is to the same effect. In Minnuci v. Philadelphia & Reading Rail road Co., 68 N. J. Law, 432, 53 Atl. 229, it was declared that an averment in a declaration which stated that the plaintiff's injuries were caused solely by the negligence of the defendant, without more, although it did not fulfill the requirement of the rule of pleading that the certainty of the state ment of the plaintiff's case must be such as in a reasonable measure to apprise the defendant of the case to be made against him, was good on general demurrer. The opinions referred to are those of the Supreme Court; but the soundness of the judicial declarations has never been challenged, so far as we are aware, and they meet with our approval. It is hardly necessary to add that they are dispositive of the present appeal; for they establish the principle that an averment in a declaration that the plaintiff's injuries resulted directly from the negligence of an employé of the defendant, "The court or a judge may on four days' notice strike out any pleading which is irregular or defective, or is so framed as to prejudice, embarrass or delay a fair trial of the action." The distinction between the motion to strike out just referred to and that provided by the present fortieth rule of the Supreme Court is the distinction which existed at common law between a special and a general demurrer; the one being directed at matters of form and the other at matters of substance. The scope of the former motion-that is, whether it can be availed of after a party has pleaded issuably-is, of course, not involved in the present appeal, and, naturally, has not be considered by us. [3, 4] Another matter should, we think, be adverted to by us, as the case must be sent back for retrial. In the colloquy between court and counsel, during the argument of the motion to strike out under rule No. 40, the attorney for the appellant stated that all he would be able to prove, if the trial of the case was permitted to proceed, was that his client was standing on the back platform of the car, and the motion of the car threw her; and, apparently, this statement was considered by the court to be material in determining the question whether or not the complaint exhibited a cause of action. But this is not so. Whether or not the proofs offered by the plaintiff would support the averment of the complaint could not become a live question until after the validity of the pleading had been established. Assuming the validity of the complaint and the insufficiency of the probata to support it, the proper practice is to move for a nonsuit either upon the plaintiff's opening or when PARKER, J. This is a dispute over the he has rested his case. right of Jersey City to tax certain personal The judgment under review will be re- property of the bankrupt firm of Dailey & versed. BERGEN and WILLIAMS, JJ., dissent. TENNANT V. STATE BOARD OF TAXES AND ASSESSMENTS et al. (No. 33.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) (Syllabus by the Court.) I. Taxation 270-Personalty in possession of trustee in bankruptcy liable to taxation in district where found. Personal property of a bankrupt, in the possession of a trustee in bankruptcy, is liable to taxation in the taxing district where such property is "found" on the date fixed by law for assessment of taxes; and this includes money deposited in bank. 2. Taxation 87-Statutory provision that personalty in possession of trustee shall be assessed in his name directory merely. Ivins, for taxes of the year 1918. The two principal questions are: First, whether the property now in question was taxable at all under the laws of this state because of the title, possession, qualified ownership, or whatever it may be called, to which it was subjected at the taxing date, May 20, 1918; and, secondly, whether the property had such a situs within the taxing district of Jersey City as to permit the tax lien to attach. By the various appeals from the local assessors to the county board and thence to the state board, and the certiorari from the Supreme Court, all disputed matters seem to have been eliminated except a fund in bank and a tugboat which on May 20 was moored (as we were informed on the argument) in the South Cove of Jersey City. As to the fund in bank, it is stipulated to be part of the proceeds of sale of a shipyard of Dailey & Ivins, and it is claimed that it should not be included in the valuation because the attorneys in the case stipulated "that the question of the right to assess against the proceeds of sales is not to be considered on this appeal" (to the State Board). If it was meant thereby to stipulate a legal rule for the State Board and the courts, such a stipulation, as the Board prop The statutory provision that "personal property in the possession or under the control of a trustee * * shall be assessed in his name as such" (4 Comp. St. 1910, p. 5091), is merely directory, and has no force in exempt-erly pointed out, is futile. The Board held ing the property itself from the general language of the statute making such property taxable. 3. Taxation 87-Ministerial court officer in possession of seized property not liable for tax thereon. It seems that a ministerial officer of court having in his possession seized property by virtue of court process is not liable for tax thereon; but this does not exempt the property itself. therein. this fund taxable and the Supreme Court affirmed that ruling. Both tribunals properly took into consideration the questions of law involved; and our sole concern here is whether they rightly decided them. As the same reasoning applicable to this fund applies in part to the tugboat, both will be considered together in this aspect. [1-4] On this phase of the case the argument seems to be that the fund and the tugboat, being held by the trustee in bankruptcy, were in the custody of the law, and that property in such custody is not taxable. 4. Taxation 71-Vessel permanently moored within state awaiting sale liable for taxes A vessel permanently moored in the tide-On the broad question whether property of waters of New York Bay or the Hudson river a bankrupt in the hands of a trustee in bankwithin the territorial lines of New Jersey, awaiting sale, and so found on the date of the annual assessment, is liable to taxation in New Jersey. ruptcy is exempted from state taxation, the answer of the United States Supreme Court is decidedly in the negative. Swarts v. Hammer, 194 U. S. 441, 24 Sup. Ct. 695, 48 L. Ed. 1060. This is dispositive of the taxability of the bank deposit in this aspect. As to the tugboat, the appellant further argues that on May 20 it was not actually in that by reason of a clause in the tax act of his possession, but in that of the marshal, and 1903 (4 Comp. St. 1910, p. 5075) it is not sub ject to taxation. In dealing with this, it should be borne in mind that the tax was imposed against "Dailey & Ivins, George G. Tennant, trustee in bankruptcy." Appellant invokes the language of section 11 of the tax act of 1903 (C. S. p. 5091), |