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cause of action in favor of the plaintiff against the defendant. We think that it does not. If any obligation exists on the part of Gerth to account to Wellner for the profit which he (Gerth) made in the exchange of sixty-seven shares of his own stock in the Perfection Company for sixty-seven shares of the Riley-Klotz stock, it arose immediately upon the consummation of that transaction. It is necessary, therefore, to consider the situation at that time. Wellner had been afforded an opportunity to exchange sixty-seven shares of his hypothecated stock for Riler-Klotz stock. This, by his inaction, he had inferentially declined to do, and his right to make the exchange had expired. At its expiration a new right sprang into existence, and that was a right in the other holders of the Perfection Company's stock to take the RileyKlotz stock which Wellner had refused. When, therefore, the treasurer of the Perfection Company permitted Gerth to exchange sixty-seven shares of his own stock for the sixty-seven shares of Rilev-Klotz stock which had been offered to Wellner and which he had declined, this transaction was not a riolation of any right of Wellner, but an infringement upon that of those holders of Perfection Company's stock who had the substitute option. They, and they alone, were entitled to complain; for, except as to them, the right of the Perfection Company at the time of the transfer to Gerth to sell the sixtyseven shares of Riley-Klotz stock to whomsoever it saw fit was absolute. The fact that, at the time of the transfer to Gerth, he was in possession of Wellner's Perfection Company's stock as collateral is immaterial. That possession gave him no superior equity to acquire the Riley-Klotz stock, in his own right, but neither did it disqualify him from doing so. He expressly refused to exchange any of the Wellner stock for it (and, of course, he would have had no right to do that), and instead exchanged his own individual property for it. By doing so, he became its absolute owner, free from accountability to anyone by reason of his ownership, except, perhaps, to those whose options he had forestalled.
There was received in evidence proof of dealings with the one hundred and thirty-eight shares of the hypothecated
Wellner stock, after the foreclosure sale thereof, which was considered by the trial court as material in determining the question of the liability of Gerth in the present action. We hare not considered it necessary to recite this proof for the reason that, as the foreclosure sale was a lawful and proper one, we are of opinion that what was afterward done with that stock by the purchaser could neither operate to terminate a liabiliiy existing against Gerth in favor of Wellner, if such liability existed, nor to create one if it did not exist.
The rule to show cause will be made absolute.
JOHN J. CAIN, PROSECUTOR, V. THE MAYOR AND COM
MON COUNCIL OF BAYONNE.
Submitted December 1, 1910-Decided January 9, 1911.
Assuming that some of the provisions of an ordinance regularly
enacted by a common council are susceptible of an application that would be in excess of the authority granted by the city charier or an unreasonable interference with its provisions, the ordinance will not, on that account, and in advance of any such application, be set aside in toto if in other respects it is unobjectionable.
Before Justices GARRISON, SWAYZE and VOORHEES.
For the prosecutor, James A. Hamill.
For the defendant, Daniel J. Murray and Elmer W. Demarest.
The opinion of the court was delivered by
GARRISON, J. This certiorari is brought by a citizen of Bayonne to set aside an ordinance for the regulation of the police department of that city. The fact that the prosecutor
is the navor of the city has no legal significance. The contention of the prosecutor is that the ordinance is one t'iat the common council had no authority to enact for the reason that some of its provisions may be so applied as to clash with the charter powers of the mayor of the city with respect to the police. The general authority of the council to enact ordinanies 10 regulate the department of police is expressly granted by the charter, and many of the provisions of this ordinanre are admittedly not open to the oljection now urged. and there is no contention that the ordinance was not regularly pa-sed both originally and over the reo of the mayor. We are asked to set aside the entire ordinance and could do nothing less under this writ if we accede to the soundness of the prosecutor's contention. The prosecutor's position, therefore, is that in order that the provisions of the ordinance to which his objections apply may be annulled in advance of any action taken thereunder, we should set aside an entire ordinance legally enacted as to many of the provisions of which no ohjertions are or can be urred. It would be unfortunate in the extreme if suc? were the only alternative. The mischief anticipated by the prosecutor's interpretation of the prorisions that he challenges is apprelinded merely, as vet no one has been injuriously alleeted in any of his rights. The apprehended di:ficulty may not arise: if it does it will be because some right claimed by someone is denied to him by force of some provision of this ordinanet. If the provision then drawn into controversr he one that it was berond the power of council to enact, its invalidity upon that ground mar be effectively litigated without destroying the entire ordinance. The decision of the Court of Errors and Appeals in Pinnsyranin Railroad r. Jiray City, 18 l'rim 256. is authority for the propositions that it is not necessary that an entire ordinance should he annulled in order that objections to certain applications of it may be questioned as and when they are placed before the courts for specifie determination. and that tie proper judicial action, if the objection to certain provisons of an onlinance be we!! founded, is not to vacate the ordinance in torto, but to refuse to give ettert to the
Goessel v. Central R. R. of N. J.
part of it that is, on this hypothesis, invalid. The same course was followed by this court in Gaslight Co. v. Rahway, 29 Id. 510.
It is true that the provisions of the present ordinance that are challenged by the prosecutor are not susceptible of being tested in the precise manner contemplated by the cases I have cited, i. e., in a penal action; but the underlying principle of judicial action is the same, and the rule announced includes not only a conceded right to litigate the controverted question as and when it arises, but also an implication that pending the occasion for such litigation the doctrine of laches is in abeyance. If the objections were to irregularities in the passage of the ordinance or to matters that went to the entire enactment, the case might be different, but here the challenge is that the reprobated provisions were not within the power of council to enact an available and several defence not applicable to the ordinance as a whole.
The status of the prosecutor to sue out this writ has not been considered in view of the foregoing conclusion as to the premature bringing of this proceeding and the too sweeping scope of the judgment required under it.
The writ of certiorari is dismissed, with costs.
CHARLES GOESSEL V. CENTRAL RAILROAD OF NEW
Submitted December 1, 1910—Decided January 6, 1911.
In an action by an engine wiper whose head was struck against the
side wall of the doorway of the shop out of which the engine was moved by the defendant while plaintiff was at work-Held, that the questions of the negligence of the defendant and the contributory negligence of or the assumption of risk by the plaintiff were properly left to the jury.
Goessel v. Central R. R. of N. J.
81 N. J. L.
The plaintiff, Charles Goessel, who, at that time, was seventeen years of age, was injured while in the employ of the defendant company as an engine wiper. The plaintiff had been working for the defendant company nine days, and this was the first day that he had been required to do this work in the machine shop. His duties required him to wipe the engines where they might happen to be.
On the morning of the accident he went into the machine shop, under orders, to wipe the engine in question. It was a cold morning, the doors of the machine shop were closed and the escape of smoke and steam from the engines made it difficult to see, and the noise of the work that was going on in the machine shop made it difficult to hear. The machine shop was built some years ago (when the locomotives used were smaller than the ones in use at the time of the accident), and there was only a space of about five inches between the side of the cab where plaintiff was working at the time of the accident and the brick wall of the doorway. Plaintiff at the time of the accident was wiping windows of the cab, and the uncontradicted proof is that in order to do this work it was necessary for him to get down on his knees on the inside of the cab and lean his head and arm and part of his body out of the cab, and he was engaged in working in this way when the engine was run out of the shop and his head crushed between the brick door-jamb and the side of the cab, which tore his ear and also cut his head badly. Plaintiff received no warning of the dangerous conditions there and did not know of the risk and was unable, because of the darkness, to see the danger.
The verdict was for the plaintiff $1,700.
On this rule to show cause the defendant contends, first, that no negligence of the defendant was shown; second, that the plaintiff was guilty of contributory regligence, and third, that the damages were excessive.
Before Justices GARRISON, SWAYZE and VOORHEES.
For the rule, George IIolmes and George H. Large.