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filed in the office of the Secretary of State on the same day; also a location of the route of the road, and a map, filed December 7, 1899; also an ordinance of the township committee of the township of Hamilton, granting permission to the said company to lay its road along the highway indicated in the description and shown on the map of its route, and acceptance by the company and the officers of the company, filed January 23, 1900, and also the written consents of certain owners of land abutting on the highway. The evidence offered in respect to the organization of the road of the petitioners is a description of the road, with a map attached, filed in the Secretary of State's office on August 23, 1901; an ordinance of the township committee of the township of Hamilton, granting permission to use the highway; acceptances by the company and the officers of the company of the ordinance, filed in the office of the Secretary of State October 9, 1901, and consents of abutting owners along the highway.

It is insisted that the existence of the original road is not proved, because the consent by the township to the laying of the original road was invalid, in that there was not filed with the township clerk the consent in writing of the owner or owners of at least onehalf in amount in lineal feet of the property fronting on the street or highway upon which the road was to run. The act controlling this matter is to be found in P. L. 1896, p. 329. This act provides that no street railroad shall be constructed upon any street or highway except upon the consent of the governing body of such municipality, town, township, village, or borough. The act contains a proviso as follows: "That such permission to construct, maintain and operate a street railway shall in no case be granted in whole or in part until there shall be filed with the clerk of such governing body or other equivalent officer, the consent in writing of the owner or owners of at least onehalf in amount in lineal feet of property fronting on the streets, highways, avenues, and other public places, or upon the part of the street or streets, highway or highways, avenue or avenues and other public place or places, through or upon which permission to construct, operate and maintain a street railway is asked, and any such consent may be signed by an attorney in fact, thereunto duly authorized by any owner, or by an executor or trustee holding the legal title or having power of sale, which consent shall be executed and acknowledged as are deeds entitled to be recorded."

It is first objected that it does not appear that those purporting to give their consents, filed in the township clerk's office, owned the requisite number of feet required by the statute; and it is objected, secondly, that the consents are not executed in accordance with the statutory requirements, the statute requiring that the consents shall be executed

and acknowledged "as are deeds entitled to be recorded." In respect to the absence of proof that those who signed the consents owned the requisite number of lineal feet, nothing appears but the statement in the written consents of the number of feet owned by each consenting owner. As the filing of the requisite consent was a condition precedent to the power of the township committee to pass the ordinance, I think that the fact of the passage of the ordinance should be regarded as evidence that the committee found that the consents filed were, in this respect, in accordance with the statute. The committee could resort to whatever evidence it wished to satisfy itself of that fact. It is true that the proceedings were of a statutory body with a limited power, yet, so long as nothing appears in the record of their proceedings to exhibit an absence of power to act, and inasmuch as the statute requires no record of the decision of the committee in respect to the fact that the owners of the required feet have consented, it may be assumed, until the contrary is shown, that this fact was satisfactorily proven to exist.

The remaining objection, however, is based upon what appears in evidence, viz., that the consents which were filed were neither sealed nor acknowledged as sealed instruments. The statute requires that the consents shall be not merely acknowledged, but shall be executed "as are deeds entitled to be recorded." The word "consent" includes those made by the owner himself as well as those made by his attorney in fact, or by an executor or trustee holding the legal title or having a power to sell abutting lands. Now, it is common learning that one of the requisites of a deed is a seal. The grant of an easement requires a seal. It is, of course, true that equity can treat an unsealed instrument purporting to be a deed or grant as an agreement creating an equitable interest in or a lien upon the land which is the subject-matter dealt with by the imperfect instrument. That rule, however, is inapplicable in this proceeding; for, while the method of crossing is put by the Legislature under the supervision of a court of equity, yet one of the statutory conditions upon which the right of the trolley road to cross is that the petitioning road has not merely the consent of a certain proportion of abutting owners, but that the consents shall be evidenced in a form fixed by the statute. To make these consents provable, the statute requires that they shall be executed and acknowledged as deeds. These were not. And so the filed consents were not provable as such, and at the time of the passing of the ordinance granting permission to the original traction company the condition was as if no legal consents had been filed with the clerk. It follows that it is not proved that a legal road existed, of which the present road is an extension.

Again, the same objection in respect to the

legality of the consents is raised in regard to the validity of the petitioning road. The consents of the abutting owners last mentioned are on one paper, having seals attached to the names of the landowners, but the certificate of acknowledgment with one exception states merely that the grantors signed and delivered the same as their voluntary act and deed. Had the certificates stated that the owners "acknowledged that they executed the instrument as their voluntary act and deed," the acknowledgment would have been good, although sealing was unmentioned. Sharp v. Hamilton, 12 N. J. Law, 109. I think that these acknowledgments are sufficient. The signers acknowledged that they signed the consents, and delivered them as their voluntary act and deed. A deed imports a sealing, and these consents were actually sealed.

It is also objected that consents should have been filed with the county clerk as a condition precedent to the granting by the board of chosen freeholders of Mercer county permission to place this road upon a macadamized county road. The act of 1894 provided that no street railroad shall be constructed upon a street or highway in a municipality, town, township, village, or borough except upon the consent of the governing body of such municipality. It provides that such consents shall not be granted by the governing body of any such municipality, etc., until consents by a certain proportion of lineal feet owned by abutters upon the road shall have been filed in the office of the clerk of the municipality, etc. The act of 1896, p. 329, clearly supersedes the act of 1894, p. 374, as it covers all its provisions respecting consents. This act provides that no street railroad shall be constructed upon any street or highway in any city, town, township, village, or borough except upon the consent of the governing body of such municipality, town, township, village, or borough. The act then provides for the consent of the abutting owners in the manner already exhibited. It is perceived that the word "city" is substituted in the act of 1896 for the word "municipality" in the act of 1894; and when the word "municipality" is afterwards used, followed by the other specified instances, the word undoubtedly refers to cities. It is the governing body of such cities, towns, townships, villages, and boroughs with which all consents to the required permission shall have been filed. All this is to be found in the first section of the act of 1896. The second section of the act deals with the manner of obtaining permission to change the motive power used by a street railroad. Then follows a proviso that if any board, body, or public authority, other than the governing body of such municipality, town, township, village, or borough shall have control of any of the streets or highways over which the proposed street railroad is to be constructed, etc., the consent of such board,

body, or public authority shall also be required. Then follows a provision requiring that such consent shall be granted only upon notice, to be given in the same manner as provided for in respect to notices to be given upon application for the consent of municipalities. It is under this provision that the application was made to the board of chosen freeholders as the board having control of the road over which this proposed trolley is to be constructed.

It seems entirely clear that the consent of the abutters is required to be only once given, namely, before the municipal authorities mentioned in the first section of the act of 1896 grants its permission. The provision for the consent of the abutting owners is referable to the action of the governing body of cities, towns, townships, villages, and boroughs. The only condition attached to the granting of the latter permission is that notice shall have been given in the same manner as provided for in the first section. While expressly providing for the same notices, it is entirely silent as to any consent of abutting owners in the manner required in the first section. The express requirements of notice, coupled with silence in regard to consent, excluded the idea of an absurd requirement that two consents of the same abutting owners shall be executed and filed before a valid grant of permission can be given by the county.

It is, again, objected that there is no compliance with the statutory requirement that before the beginning or construction of any extension or new trolley line the corporation shall file in the office of the Secretary of State a description of the route of such extension, or new line, showing the termini, together with a map exhibiting the same with the courses and distances thereof. Upon the map filed by the present petitioners is marked a distance from a southerly terminus, running northerly 1,462 feet, more or less. The description filed omits the words "more or less," and described the southerly terminus at a point in the road known as "Crosswicks,” and Trenton turnpike, where the road leading from Groveville to Hamilton Square intersects the same, and runs thence a certain course 1,462 feet to a point in said highway, which point is the northerly terminus. I think that the words "more or less" upon the map may be rejected as surplusage. They have no significance whatever when the distance is the only indication of the point where the road stops. I think a point 1,462 feet from the southerly terminus is the northerly terminus of the present road, and sufficiently appears, both in the written description and upon the map.

These conclusions still leave wanting the provable consents by the abutting owners to the laying of the road of which this is an extension. There is, however, offered in evidence the record of a proceeding upon cer

tiorari in which the Pennsylvania Railroad Company was prosecutor and the petitioner was a defendant. The writ seems to have brought up the ordinance passed by the township committee of Hamilton township, giving the petitioners permission to lay its road upon the highway within the township. This ordinance was adjudged by the Supreme Court and the Court of Errors upon a writ of error to be a valid ordinance. This judgment would conclude the two parties mentioned in any proceeding brought directly to test the validity of that ordinance. The doctrine of res judicata, however, differs, when applied to a new proceeding for the same, or part of the same, cause of action, and when applied to a different cause of action. In the former instance everything that could have made for the plaintiff or for the defendant is settled by the first judgment. In the latter instance only those issues actually presented and decided are concluded. City of Paterson v. Baker, 51 N. J. Eq. 50, 26 Atl. 324; Clark Thread Company v. William Clark Company, 55 N. J. Eq. 658-662, 37 Atl. 599. The present proceeding must be regarded, not as a direct attempt to litigate the validity of the ordinance, but as a new proceeding, in which the validity of the ordinance and the existence of certain conditions essential to the validity of the ordinance come into question. Therefore the only points upon which the Pennsylvania Railroad Company is estopped are those actually litigated in the certiorari proceedings. The issue actually tried in that proceeding was whether the ordinance was good as against the reasons filed for its vacation. In North River Meadow Company v. Shrewsbury Church, 22 N. J. Law, 424, 53 Am. Rep. 258, an action of debt was brought to collect an assessment imposed upon lands belonging to the church. The Meadow Company, in support of the assessment, put in evidence the record of a proceeding in certiorari prosecuted by the church to test the legality of the assessment. In this proceeding the assessment had been held to be legal. The Supreme Court held that in the subsequent action to collect the assessment the church was estopped from asserting that the assessment was invalid. It was so held upon the ground that the reasons assigned by the church for vacating the assessment in the certiorari proceeding embraced all the points suggested on the trial of the later action. It is true that in the certiorari proceedings brought to test the ordinance in this case general, as well as special, reasons were assigned for its vacation; but the court was not obliged, and under its practice would not, notice the former, and in fact did not do so.

Inasmuch as the want of filed consents by the abutting owners were not assigned as grounds of objection to the ordinance, the Pennsylvania Railroad Company is not estopped from now setting up this objection.

This renders it unnecessary to consider the question what the posture of affairs would have been had the Pennsylvania Railroad Company been estopped, in view of the fact that the United New Jersey Railroad & Canal Company, which was not a party to the certiorari proceedings, is a respondent in this cause. Unless, by its lease to the Pennsylvania Railroad Company, it stripped itself of all substantial interest in the road, and passed the same to the Pennsylvania Railroad Company, it, not being estopped by the certiorari proceedings, would occupy a position to insist upon all the objections raised.

I am therefore constrained to the conclusion that by reason of the want of provable filed consents of the abutting owners along the road of which the petitioner's road is an extension, the petitioner has no standing to ask for the order now sought.

(68 N. J. L. 343) FIELDERS v. NORTH JERSEY ST. RY. CO.

(Court of Errors and Appeals of New Jersey. March 2, 1903.)

Dissenting opinion. For majority opinion, see 53 Atl. 404.

FORT, J. In this case I am unable to agree with the majority of the court. I should be willing to affirm upon the opinion of Mr. Justice COLLINS in the Supreme Court, reported in 50 Atl. 533. The conclusion reached by the Supreme Court in that opinion is, in my judgment, based upon a proper application of the police power, and also upon a wise public policy. I agree with Mr. Justice PITNEY in his opinion in this case, wherein he declares that "the plaintiff at the time of her injury was not in the exercise of her rights as a passenger in the act of leaving the defendant's car," and that, if she can recover, it is only upon the theory that the defendant, by a failure to repair the hole in the highway lying between its tracks, had failed to perform some duty which it owed to the plaintiff as one of the public. It is misleading, in my view, to refer to this case as one in which the failure of the defendant is a failure to repair the surface of the street. The hole in the highway was at a street crossing, and abutting upon the rail of the track, or its foundation, and the failure to repair at this point was a failure to repair its tracks, within the well-recognized principles of law applicable to the duty to repair tracks, laid upon a railway company having a right to lay tracks in the public streets. The majority opinion in this case concedes that "it is familiar law that a railway company having the right to lay tracks in a public street is bound by the general principles of the common law, and, without either a specific statute or ordinance, or a contractual obligation, to lay

its tracks in a proper manner, and to keep them in a proper state of repair." This principle thus stated is clearly sustained by 2 Thom. on Neg. (2 Ed.) § 358, cited in that opinion. I am at a loss to perceive how the duty to repair the hole between the tracks was not one of the duties to repair the track which was incumbent upon the defendant company under its implied obligation to so construct and maintain the rails of its track as that they should be free from dangers to persons lawfully using the highway. I regard the tracks as contemplating all between the rails as laid in the public highway.

The defendant's counsel, at the hearing and in his brief, admitted that, if the defendant company did not have actual knowledge of the condition of its tracks at the point in question, it was chargeable with such knowledge, because of the length of time the track had been in the condition it was at the time the plaintiff was injured; and, applying the principle of law stated in the majority opinion to the facts in this case, that, "if the defendant was under an absolute duty to repair the pavement, it was at the same time under a duty to observe its condition," it seems impossible to escape the conclusion arrived at by the Supreme Court.

It is held by the Supreme Court, and not controverted by the majority opinion in this court, that the ordinance of the city of Newark in evidence in this case, and upon which the plaintiff in part relied, requires the repairing by the defendant company between its tracks, and that the charter of the city of Newark, passed in 1836, and cited in the opinion of the Supreme Court, under the authority of which said ordinance was adopted, was in force at the time the defendant company took over the street railway which had its tracks upon Mulberry street in the city of Newark, and also at the time of the incorporation of the defendant company. Where a street railway company takes a franchise from a municipality to operate a street railway within the limits of such municipality, it takes it subject to the power of such municipality to regulate, under such franchise, its use of the streets, and its duty to pave and repair between the tracks, as expressly or impliedly authorized by the municipal charter. I am also clear in my view that such a provision of a city charter, or of an ordinance passed under it, is not for the benefit of the city, per se, but is for the protection of the traveling public. Especially must this be true with regard to a provision with relation to the paving and repairing of that portion of the highway lying between the rails constituting the tracks of the company. The city does not pave for its own purposes, per se. Paving is for the use of the public-both those of the public who pass over it with horses and carriages, and those who pass on foot. A corporate

entity does not travel, and does not need paved streets. In Sonn v. the Erie Rail

way Company this court held that a provi. sion of the charter of the Erie Railway company which required it to keep its crossings at public highways secure for travel laid upon it a duty to the public, and, for default in so doing, it was liable in damages to a person injured because of its neglect of this duty. The principle of that case obtains where any duty is imposed by statute, or an ordinance lawfully passed under statutory authority; and it matters not whether the duty is in a special charter, a general act, or a lawful ordinance. Sonn v. Erie Railway Company, 66 N. J. Law, 428, 49 Atl. 458.

In the majority opinion there is a discussion of the question as to whether the ordinance of the city of Newark which attempts to impose a duty upon the defendant company to pave its tracks is not void because such an imposition is, in effect, taxation. I shall not discuss that question, farther than to express dissent from that view, for the reason that that question is not, in my judg ment, in this case for decision.

I am authorized to say that Justice HENDRICKSON and Judge BOGERT concur in the view here expressed.

I vote to affirm.

VREDENBURGH, J. I concur in the dissenting opinion of Mr. Justice FORT in this case as a whole, but desire to especially emphasize my adherence to the doctrine therein contained wherein it is said that "a city charter, or an ordinance passed under it, is not for the benefit of the city, per se, but is for the protection of the traveling public. Especially must this be true with regard to a provision with relation to the paving and repaving of that portion of the highway lying between the rails constituting the tracks of the company. The city does not pave for its own purposes, per se. Paving is for the use of the public."

For these reasons, I also vote to affirm.

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1. The Supreme Court will not consider a brief submitted on behalf of a party in error by a member of the bar who has not been licensed to practice as counselor at law, notwithstanding a stipulation to submit the cause upou briefs.

Error to Circuit Court, Hudson County.

Action by George F. Duyster against Theron C. Crawford. Judgment for plaintiff, and defendant brings error.

Argued November term, 1902, before GUM. MERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Theodore Rurode, for plaintiff in error. George S. Hobart, for defendant in error.

PER CURIAM. On the call of the list at the opening of the term, it was announced that this cause would be submitted upon briefs. Pursuant to this announcement, copies of the printed case and briefs were filed with the sergeant at arms. It appears, however, upon an inspection of the brief submitted on behalf of the plaintiff in error, that it is presented by a member of the bar who has not as yet been licensed to practice as a counselor at law. This court will not receive such a brief. The cause stands, therefore, as if, notwithstanding the stipulation to submit it upon briefs under the rule, the plaintiff in error had entirely failed to comply with that stipulation. The defendant in error is entitled to proceed as if no brief had been filed by his adversary.

In re CLAUS' WILL. (Prerogative Court of New Jersey. Jan. 27, 1903.)

COSTS ON APPEAL-PROBATE OF WILL. 1. Where the orphans' court decided that contestant, on the probate of a will, had reasonable cause for the contest, and ordered the costs to be paid out of the estate of testator, and the proponent of the will did not appeal therefrom, but no reasonable cause existed for protracting the contest by an appeal to the prerogative court, the costs and expenses of such an appeal will not be paid from the estate.

Appeal from Orphans' Court, Camden County.

In the matter of the alleged last will and testament of William F. Claus, deceased. From a decree admitting the will to probate, contestant appeals. Affirmed.

Spencer Simpson, for appellant. Florance G. Toram and D. V. Summerill, for appellee.

MAGIE. Ordinary. I find nothing in the proofs before the orphans' court to justify a reversal of the decree admitting the will to probate. It must be affirmed.

The orphans' court concluded that the appellant had reasonable cause for contesting the validity of the will, and ordered the costs and expenses of the litigation on her part to be paid out of the estate of testator. The proponents of the will have not appealed therefrom, and the order, as made, must stand. But I find no reasonable cause for protracting this contest by an appeal to this court, and will decline to direct the costs and expenses of appellant in this court to be paid from the estate.

(68 N. J. L. 618)

BROWN v. ELIZABETH, P. & C. J. R. CO.
(Court of Errors and Appeals of New Jersey.
March 2, 1903.)
STREET RAILROADS-INJURY TO PEDESTRIAN
-CONTRIBUTORY NEGLIGENCE.

1. Plaintiff attempted to cross, on foot, trolley tracks laid in the middle of an avenue with which he was familiar. The time was after 7 o'clock in the evening of February 12th.

The night was very dark and rainy. He was struck and injured by a trolley car coming from the east. In that direction the avenue was straight for a long distance. The car carried a headlight at its top, and its interior was also lighted. From the configuration of the ground, all the lights of a car thus approaching could be seen for 650 or 700 feet, and the headlight for a much greater distance. He testified that when he started to cross he did not see the car, but before he succeeded in crossing he was struck, though he "stepped as quick as he could." Held that, upon plaintiff's case, his negligence contributing to his injury so clearly appeared that it was error to submit the case to the jury.

(Syllabus by the Court.)

Error to Circuit Court, Union County.

Action by Daniel Brown against the Elizabeth, Plainfield & Central Jersey Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Frank Bergen, for plaintiff in error. Jeremiah A. Kiernan, for defendant in error.

MAGIE, Ch. The record brought up by this writ of error discloses a judgment in favor of the plaintiff in an action brought to recover compensation for injuries sustained by him by reason of a collision with a trolley car of the defendant. The judgment is assailed on the single ground that the trial judge erred in refusing to nonsuit the plaintiff. It appears by the bill of exceptions that the motion to nonsuit was made upon two grounds: (1) That there was a failure of evidence to justify a finding by the jury that the motorman engaged in running the trolley car which struck plaintiff was guilty of any neglect of the duty which the company owed to a pedestrian crossing the track of the company under the circumstances proved in the case; and (2) that, upon the plaintiff's testimony, his own negligence contributing to his injury was conclusively, and as a matter of law, established, so that a verdict in his favor lacked the support of evidence. It has been deemed necessary to consider only the second ground on which the motion was based.

In dealing with the questions thus presented, it must be assumed that the jury were entitled to give credence to the testimony of the plaintiff and the witnesses produced by him, and to draw therefrom all reasonable inferences favorable to his contention. The question is whether, upon such assumption, a verdict for the plaintiff is supportable. The circumstances disclosed by the evidence thus given are these: The collision took place after 7 o'clock in the evening of February 12th. The evening was very dark, and it was raining. Plaintiff had left his work, and was going toward his home on foot. He had reached a public street called "South Avenue," and was passing along it on the south side, in an easterly direction, when he, for reasons which he gave, crossed, or attempted to cross, to the northerly side of the avenue. In doing this, he was obliged to cross the tracks of the

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