94 N. J. L. Slingerland v. Prudential Ins. Co. We think the ruling of the trial court is supported by authority of the New Jersey courts. Metropolitan Life Insurance Co. v. Schaffer, 50 N. J. L. 72; Brooks v. Metropolitan Life Insurance Co., 70 Id. 36; Prudential Insurance Co. v. Godfrey, 75 N. J. Eq. 484. This accords with the rulings in other jurisdictions, where, in some of the cases, this identical clause was under discussion. Prudential Insurance Co. v. Brock, 48 App. D. C. 4: L. R. A., 1918E 489; American Security, &c., Co. v. Prudential Insurance Co., 16 App. D. C.) 318; Thompson v. Prudential Insurance Co., 119 App. Div. 666; 104 N. Y. Supp. 257; Thomas v. Prudential Insurance Co., 158 Ind. 461; Brennan v. Prudential Insurance Co., 170 Pa. St. 488. For a collection of other cases, see note in 20 L. R. A. (N. S.) 928; L. R. A., 1916F 461. But it is argued by the appellant-the validity of the contract of insurance being admitted-the precise point raised in this case was not disposed of in any of the cited cases, viz., the discretion conferred upon the insurer under the above clause must be exercised before payment is demanded by the representative of the deceased. The demand was made February 8th, 1919, the payment was made February 13th, 1919. But the executor's right to thus limit the power of selection by the insurer is not in the contract. The complete answer to the appellant's point is, the contract of insurance between the parties does not so provide. The court cannot make a contract for the parties by judicial construction. An election by the insurer, and a payment to anyone of the class or classes of persons designated in the above article showing themselves to be equitably entitled to receive the money, before suit is brought, is a complete discharge of the defendant from further liability under the policy. This accords with the ruling in the case of American Security, &c., Co. v. Prudential Insurance Co., supra; to the same effect is Thomas v. Prudential Insurance Co., supra. We are not called upon to decide what effect a payment might have after the suit had been commenced. The judgment of the Essex County Circuit Court will be affirmed, with costs. Burrough v. New Jersey Gas Co. 94 N. J. L For affirmance-THE CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 14. For reversal-None. THOMAS E. BURROUGH, RESPONDENT, v. NEW JERSEY GAS COMPANY, APPELLANT. Argued March 5, 1920-Decided June 14, 1920. Where the qualification testimony of a real estate agent called as an expert shows that as a result of his experience in having sold several like properties similarly located, some with and some without shade trees on them, he has acquired special knowledge of the monetary effect of the presence or absence of shade trees upon the market value of a particular suburban dwelling-house property, it was held not to be error for the trial court, in the exercise of its discretion, to permit such expert, who was familiar with the property in question and had examined it both before and after its shade trees were destroyed by defendant's negligence, to testify to the amount of the damage to the value of the property resulting from such destruction. On appeal from the Supreme Court. For the appellant, Norman Grey and Charles V. D. Joline. For the respondent, Edward C. Waddington. The opinion of the court was delivered by WHITE, J. Plaintiff recovered a judgment for $497 and costs for damage to his homestead in the killing of two shade trees and the contamination of a well of drinking water thereon by illuminating gas escaping from pipes and connections negligently constructed and maintained by defendant in 94 N. J. L. Burrough v. New Jersey Gas Co. the adjoining highway. A former similar judgment was reversed by this court (Burrough v. New Jersey Gas Co., 88 N. J. L. 643) because two real estate agents were permitted to testify to, and to the amount of, the diminution in value of the property from the destruction of the shade trees upon showing only a general real estate agent expert qualification in the neighborhood, but without any evidence of special knowledge on their part of the particular subject under investigation, namely, the effect upon real estate values resulting from the presence or absence of shade trees upon like properties similarly situated. A like error is now claimed in the present trial, but we think without foundation. The testimony complained of is that of Sheriff Hendrickson (a witness not called on the former trial), whose qualification testimony showed that he is, and has been, for twelve years actively engaged in the real estate business of buying and selling and placing mortgages upon properties in Gloucester county similar in character and location to the plaintiff's property; that he had bought and sold such properties (giving and being cross-examined upon the particular instances) with shade trees and such properties without shade trees on them; that from this experience he was able to say that the absence of shade trees diminished the market value of such properties, and how much; that he was a member of the shade tree commission of Woodbury, in Gloucester county, and as such had had to do with the planting of new young shade trees and with the replacing of old dead ones and with the buying of shade trees for planting, and had made a study of the beneficial effects of shade trees in the neighborhood in question. He was then permitted to testify over objection that he was familiar with the plaintiff's property and had examined it both before and after the shade trees were killed, and that its market value was from $500 to $600 less by reason of the loss of the shade trees. The admission of this evidence is attacked for three reasons: 1. It is claimed that the subject, namely, the monetary effect upon its market value of the presence or absence of shade trees on a man's dwelling-house property in a country Burrough v. New Jersey Gas Co. 94 N. J. L. village, is not properly a subject for expert testimony, because on such a subject the judgment of each of the jurymen is as good as that of the expert witness. But this, obviously, is not true. Everyone who has lived in the suburbs or in the country in the summertime knows that properly located shade trees add to the comfort of the dwelling-house he occupies, but he does not know how much they add to its market value unless he has special knowledge upon the subject. Neither would the members of the jury so know without such special knowledge. If they are not to be expected to know the market value of a particular country home without hearing the testimony of those specially qualified to know its market value, how much less can they be expected to know the monetary value of the elements which go to make up that market value. In Elvins v. Delaware and Atlantic Telephone Co., 63 N. J. L. 243, Mr. Justice Van Syckel, speaking for this court, said: "It certainly requires some special knowledge to be able to estimate the value of trees. If they are to be cut into cord wood, the witness must have some experience to enable him to say how many cords they will make. Whether they can be more profitably disposed of for cabinet making purposes, for railroad uses, or to the carriage builder, requires still more experience. The value of trees as shade trees cannot be so accurately computed as their value for commercial purposes, but still that value depends upon the size and variety of the trees, their location on the premises, the time it takes to grow them, and the price which well-shaded residence lots in the same locality have commanded during a period of years in excess of lots as well situated, but without the attraction of shade or ornamental trees. Such special knowledge, not ordinarily possessed, might be acquired by a real estate agent or by an experienced landscape gardener, and it would be within the domain of expert knowledge qualifying a witness to give evidence of his opinion as to values." We think, therefore, that the subject falls within that class to which expert testimony is properly applicable. 2. It is said that none of the special instances of sales or purchases of properties with or without shade trees, which 94 N. J. L. Burrough v. New Jersey Gas Co. formed the basis of the witness Hendrickson's special knowledge, occurred in the village of Hurfville, which is where the plaintiff's property was situated. But Hurfville is a small country village of one or two dozen houses, and the testimony. showed that the villages where the special experience sales occurred were similar to Hurfville and were all in the same part of Gloucester county and within a radius of about seven miles of Woodbury. We think the learned trial judge was quite within the limits of his discretion in admitting the evidence so far as this point is concerned. Quite likely, also, the evidence was admissible on the ground that it furnished some criterion, and while not the best that could be imagined, was in fact the best that the circumstances furnished; for it might well be that in the small country village of Hurfville no similar sale had taken place sufficiently recently to avoid the objection of being too remote in time to be of value. 3. It is claimed the witness Hendrickson failed to qualify as an expert under our cases, citing Elrins v. Delaware and Atlantic Telephone Co., supra; Van Ness v. Telephone Co., 78 N. J. L. 511; Crosby v. City of East Orange, 84 Id. 708, and the decision of this court in the appeal from the former trial of this case reported in 88 Id. 643. An examination of these cases, however, does not support this view. The Elvins case, as appears from the foregoing quotation from Mr. Justice Van Syckel's opinion, very clearly intimates that the special knowledge qualification, namely, experience knowledge of the monetary effect on market value of the presence or absence of shade trees on like property similarly located, the absence of which was fatal in that case, was exactly the qualification which Hendrickson in the case sub judice was proved to possess. So, in the Van Ness case, where Mr. Justice Bergen, reading the opinion of this court, said: "To qualify one as an expert witness there must be some proof that he has special knowledge of the subject about which he is called upon to express an opinion. The knowledge may come from experience in, or study of the matter, but there must be something shown to justify the conclusion that he has some special knowledge to make his opinion of any value. So far as appears, |