(106 A.) 5. WITNESSES 268(1) Icluded in the settlement. CROSS-EXAMINA- time he agre d to advance the money, to whom it was to be loaned; whereas the evi dence shows the borrower's name was stated at that time; and hence, for this reason also, the allegata and probata do not agree. Inasmuch, however, as plaintiff averred and the jury found the agreement was that no loan was to be made, whether to a named or un Appeal from Court of Common Pleas, Phil-named person, unless secured as a first lien adelphia County. Trespass by Theodore Heiser against Alfred E. Reynolds for negligence in investing money. Verdict and judgment for plaintiff for $2,106.90, and defendant appeals. Affirmed. Argued before BROWN, C. J., and FRA- KEP B. D. Oliensis, of Philadelphia, for appellant. C. S. Eastwick, of Philadelphia, for appellee. SIMPSON, J. Plaintiff sued defendant to recover the sum of $2,000 intrusted to him, as a broker, for investment. The verdict and judgment were for plaintiff, and defendant appeals. The evidence shows that defendant was engaged in the business of loaning money for others; that he obtained money at various times from plaintiff to loan to other people, and on this particular occasion he obtained the sum of $2,000. Plaintiff says defendant expressly agreed that the money would be loaned only upon securities which were a first lien upon real estate. Defendant says the money was advanced to loan specifically to a named person at a large bonus,. that plaintiff knew the property was heavily incumbered, and took the risk of the result. The jury having found the fact in favor of plaintiff, we must accept his statement as true. [1-3] The principal complaint made by the defendant is that the allegata and probata do not agree. He avers the statement of claim is in deceit, whereas the evidence at most showed negligence, upon which ground the case was submitted to the jury. We cannot agree with his contention. The statement avers a contract to loan only upon first liens, that the money was loaned on a third incumbrance, and was all lost by reason thereof. The averment, therefore, is one of negligence growing out of a wrongful breach of the contract. Defendant also alleges the statement is so drawn as to lead to the conclusion that plaintiff did not know, at the on real estate, the variance, if it is such, is an unimportant one; and, as no specific objection was made thereto at the time the testimony was taken, it cannot be made now. It is true a general objection was made, at the beginning of the trial, to plaintiff's offer of proof, but the admission thereof is not assigned as error, and, moreover, the objection did not refer specifically to this matter. [4] Defendant also complains because the court did not give binding instructions in his favor, on account of a receipt given by plaintiff's counsel to defendant at the time of the payment of a sum of money stated therein. It would perhaps be sufficient to say in regard thereto, that the court was not asked to construe the paper; and no assignment of error sets forth a failure to construe it properly. Moreover, the paper is only a receipt; it deals with several claims, but not with the one in this litigation, and then contains general language which, if dissevered from the context, might be held to operate as a release of the present claim. It does not say it is a release of the claims specified and other claims, but is merely a receipt for the amount paid in settlement of the claims specified and provides for a general release in the future; and the maxim "Verba generalia restringuntur ad habilitatem rei vel personam," may well be applied thereto. The attorney who drew and signed the receipt was called as a witness for defendant, and testified that it was only intended to cover the matters specifically referred to therein. The defendant testified otherwise, and the court, in a charge of which no complaint is made on this point, left it to the jury to say whether or not it was intended to cover the present claim. The jury have found that it was not. [5] The only other assignment of error is because plaintiff, in cross-examination of the witness who testified to the receipt, was permitted to ask him "Did the Spears $2,000 enter into this settlement at all?" The objection was a general one, and cannot now avail the defendant, especially as the witness was asked in chief if "the paper was a settlement paper," and plaintiff was therefore entitled on cross-examination to have the jury know of what it was a "settlement." The judgment of the court below is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MEMORANDUM DECISIONS BLAU v. PUBLIC SERVICE TIRE & RUBBER CO. et al. (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Suit by Edward Blau against the Public Service Tire & Rubber Company and others. From a decree of the Court of Chancery, dismissing bill, plaintiff appeals. Affirmed. Stein, Stein & Hannoch, of Newark, for appellant. Riker & Riker, of Newark, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens. 102 Atl. 664. In re COOK'S GUARDIANS. (No. 50.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Prerogative Court. In the matter of the commissions to be allowed to Henry Palmer and another, as guardians of Ruth Joyce Cook and others, minors, on the discharge of Henry Palmer as one of the guardians. From a decree (105 Atl. 792) dismissing an appeal from an order fixing compensation, Margaret P. Hewitt, remaining guardian, appeals. Affirmed. William B. Gourley, of Paterson, for appellant. Linton Satterthwait and Frank S. Katzenbach, Jr., both of Trenton, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Ordinary Backes. BOARD OF CHOSEN FREEHOLDERS OF MIDDLESEX COUNTY v. BOARD OF PUBLIC UTILITY COM'RS et al. (No. 101.) (Court of Errors and Appeals of New Jersey. March 31, 1919.) Appeal from Supreme Court. Petition by the Board of Chosen Freeholders (Court of Errors and Appeals of New Jersey. DE ROGATIS v. MEGARO et al. (No. 45.) of the County of Middlesex for writ of certio- Oct. 11, 1918.) Appeal from Court of Chanrari to the Board of Public Utility Commissioners and others to review a determination of the William A. Megaro and others. cery. Bill by Giovanna De Rogatis against Board. From a judgment of the Supreme cree in favor of plaintiff, defendants appeal. AfFrom a deCourt, upholding determination, petitioners ap-firmed. Anthony R. Finelli, of Newark,. for peal. Affirmed. Frederick F. Richardson and Edmund A. Hayes, both of New Brunswick, for for respondent. appellants. William Greenfield, of Newark, appellant. Alan H. Strong, of New Brunswick, for respondents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 102 Atl. 1. CONOVER v. GUARANTEE TRUST CO. et al. (No. 39.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1918.) Appeal from Court of Chancery. Action by George Conover against the Guarantee Trust Company and others. Decree advised in conformity with opinion, from which defendants appeal. Affirmed. C. L. Cole, of Atlantic City, for appellants. William M. Clevenger, of Atlantic City, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Leaming. 88 N. J. Eq. 450, 102 Atl. 844. CONOVER v. GUARANTEE TRUST CO. et al. (No. 88.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1918.) Appeal from Court of Chancery. Suit between George Conover and the Guarantee Trust Company and others. From the decree (88 N. J. Eq. 450, 102 Atl. 844) rendered, the former appeals. Affirmed. See, also, 106 Atl. 890. William M. Clevenger, of Atlantic City, for appellant. C. L. Cole, of Atlantic City, for respondents. PER CURIAM. The decree appealed from opinion filed in the court below by Vice Chanwill be affirmed, for the reasons stated in the cellor Stevens. (No. 22.) DUNLAP v. CHENOWETH et al. (Court of Errors and Appeals of New Jersey. May 8, 1919.) Appeal from Court of Chancery. Bill for foreclosure by James M. Dunlap against Emma L. Chenoweth and others, in which defendants object to confirmation of sale of lands under decree. Objections overruled, and defendants appeal. Affirmed. T. J. Middleton and Herbert A. Drake, both of Camden, for appellants. David O. Watkins, of Woodbury, for respondent. PER CURIAM. The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Backes. 105 Atl. 592. Nov. ELLIS v. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. 22, 1917.) Appeal from Supreme Court. Action by Alfred H. Ellis, administrator, against the Pennsylvania Railroad Company. From a judgment of the Supreme Court, entering without costs the rule of non pros., defendant appeals. Affirmed. Warren Dixon, of Jersey City, for respondent. Vredenburgh, Wall & Carey, of Jersey City, for appellant. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the PER CURIAM. The judgment under review opinion filed in the Court below by Vice Chan-herein should be affirmed, for the reasons excellor Leaming. 88 N. J. Eq. 450, 102 Atl. 844. WILLIAMS, TAYLOR and GARDNER, JJ., dissent. pressed in the opinion delivered by Mr. Justice Garrison in the Supreme Court. 90 N. J. | Law, 349, 101 Atl. 415. (106 A.) Bill ESTLER V. DELAWARE, L. & W. R. CO. |1919.) Appeal from Court of Chancery. (No. 41.) (Court of Errors and Appeals of by Jesse W. Fenton to enjoin William S. Crook New Jersey, Feb. 6, 1919.) Appeal from Su- and others from letting a store to a grocery compreme Court. Action by George A. Estler pany. From a decree dismissing the bill, plainagainst the Delaware, Lackawanna & Western tiff appeals. Affirmed. Samuel Roessler, of Railroad Company. From a judgment of the Newark, for appellant. Codington & Blatz, of Supreme Court, reversing a judgment in his Plainfield, for respondents. favor, plaintiff appeals. Affirmed. Elmer W. Romine, of Morristown, for appellant. Frederic B. Scott, of New York City, for respond ent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. 103 Atl. 989. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chan cellor Stevens. 102 Atl. 834. GLOBE TICKET CO. v. INTERNATIONAL TICKET CO. et al. (No. 22.) (Court of Errors and Appeals of New Jersey. March 7, 1919.) Appeal from Court of Chancery. Suit EVANS et al. v. CITY OF PATERSON. by the Globe Ticket Company against the Inter(Court of Errors and Appeals of New Jersey. national Ticket Company and others. From a Feb. 6, 1919.) Appeal from Supreme Court. decree of the Court of Chancery, advising a disCertiorari by John W. Evans and others to remissal of the bill, the plaintiff appeals. Afview assessments levied by the City of Pater-firmed. J. Edward Ashmead, of Newark (Frank son for the improvement of an avenue and the proceedings on which the assessments were based. Assessments were set aside by the Supreme Court, and the City appeals. Judgment of the Supreme Court affirmed. Francis Scott, of Paterson, for appellant. Benson and John F. Evans, both of Paterson, for respondents. Smith, of Philadelphia, Pa., on the brief), for appellant. Eugene W. Leake, of Jersey City, for respondents. PER CURIAM. The decree is affirmed, for the reasons given by Vice Chancellor Lane. 104 John O. Atl. 92. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Black in the Supreme Court. 102 Atl. 904. FAIRVIEW DEVELOPMENT CO. v. FAY. (Court of Errors and Appeals of New Jersey. Jan. 31, 1918.) Appeal from Supreme Court. Writs of certiorari by the Fairview Development Company against Thomas Fay, Collector, removing assessments and taxes by the borough of Fairview. Taxes were affirmed, and the Development Company appeals. Affirmed. Weller & Lichtenstein, of Hoboken, for appellant. Edwards & Smith, of Jersey City, for respondent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 90 N. J. Law, 427, 101 Atl. 405. HYATT ROLLER BEARING CO. v. PENNSYLVANIA R. CO. (No. 60.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Action by the Hyatt Roller Bearing Company against the Pennsylvania Railroad Company. From a judgment, affirming a judgment for plaintiff, defendant appeals. Affirmed. Vredenburgh, Wall & Carey, of Jersey City, for appellant. Day, Day, Smith & Slingerland, of Newark, for respondent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 104 Atl. 82. INTERNATIONAL RADIO TELEGRAPH CO. v. MARCONI WIRELESS TELEGRAPH CO. OF AMERICA. (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Suit by the International Radio Telegraph Company against the Marconi Wireless Telegraph Company of America. From a decree of the Court of Chancery, advising decree for complainant, defendant appeals. Affirmed. Griggs & Harding, of Paterson, for appellant. Lindabury, Depue & Faulks, of Newark, for respondent. FAIRVIEW HEIGHTS CEMETERY CO. v. FAY. (Court of Errors and Appeals of New Jersey. Jan. 31, 1918.) Appeal from Supreme Court. Writ of certiorari by the Fairview Heights Cemetery Company against Thomas Fay, Collector, removing assessments and taxes PER CURIAM. The decree appealed from by the Borough of Fairview. From a judgment will be affirmed, for the reasons stated in the affirming the tax, prosecutor appeals. Affirmed. Weller & Lichtenstein, of Hoboken, for appellant. Edwards & Smith, of Jersey City, for respondent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 90 N. J. Law, 427, 101 Atl. 405. FENTON v. CROOK et al. (No. 27.) (Court of Errors and Appeals of New Jersey. Feb. 6, opinion filed in the court below by Vice Chancellor Lane. 104 Atl. 378. MCCARTY v. BOULEVARD COM'RS OF HUDSON COUNTY et al. (two cases). (Nos. 66, 67.) (Court of Errors and Appeals of New Jersey. March 31, 1919.) Appeal from Supreme Court. Certiorari by Edward L. McCarty to review the legality of two resolutions of the Boulevard Commission of the County of Hudson and others, awarding two contracts for the repair and construction of two sections of the Hudson Boulevard in Jersey City. From judgments of the Supreme Court, affirming such municipal action, the prosecutor appeals. Affirmed. Collins & Corbin, of Jersey City, for appellant. John J. Fallon, of Hoboken, and J. Emil Walscheid, of Town of Union, for respond ents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Black in the Supreme Court. 106 Atl. 219. Mayor and Aldermen of Jersey City. From a decree for the City, prosecutor appeals. Reversed. Gilbert Collins, of Jersey City, for appellant. John Milton, of Jersey City, for respondent. PER CURIAM. This appeal involves the same fundamental question decided at the present term in case No. 61, Mayor and Aldermen of Jersey City v. Hennessey, 106 Atl. 405, and for the reasons stated in the opinion filed in that case the judgment herein, on review, is reversed, with costs. McELIGOT & CHENOWETH CO. et al. v. TOWN OF NUTLEY IN ESSEX COUNTY. (No. 89.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Circuit Court, Essex County. Action by the McEligot & Chenoweth Company and another against the Town of Nutley in the County of Essex. On case certified to the Supreme Court, questions were answered, plaintiffs appeal. Judgment affirmed. Reed & Reynolds, of Newark, for appellants. J. Harry Hull, of Nutley, for respondent. PER CURIAM. The judgment under review should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Kalisch in the Supreme Court. 104 Atl. 648. MINTURN and WHITE, JJ., dissent. MCMAHON v. RIDER, County Collector, et al. (No. 87.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Mandamus by John J. McMahon against Frederick Rider, County Collector, and others. Demurrer to return to alternative writ overruled by the Supreme Court, and judgment entered for defendants, and plaintiff appeals. Affirmed. J. Emil Walscheid, of Town of Union, for appellant. John J. Denning, for respondents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Gummere in the Supreme Court. 104 Atl. 289. MAYOR AND ALDERMEN OF JERSEY CITY v. JERSEY CITY WATER SUPPLY CO. (No. 21.) (Court of Errors and Appeals of New Jersey. May 15, 1919.) Appeal from Court of Chancery. Application by the Mayor and Aldermen of Jersey City to file bill of review against the Jersey City Water Supply Company. From a decree denying the application, complainant appeals. Affirmed. John Bentley, of Jersey City, for appellant. Humphreys & Sumner, of Paterson, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens. 105 Atl. 494. MAYOR AND ALDERMEN OF JERSEY CITY v. ROTHBERG. (No. 63.) (Court of Errors and Appeals of New Jersey. March 3, 1919.) Appeal from Supreme Court. Proceeding between Harry Rothberg and the MOTLEY V. DARLING et al. (No. 48.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Bill for discovery by Richard A. Motley against Henry I. Darling and others. Decree advised, and plaintiff appeals. Affirmed. Joseph Anderson, Sr., of Jersey City, for appellant. Charles E. Simpson, of Jersey City, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chan cellor Lewis. 88 N. J. Eq. 407, 102 Atl. 853. OCEAN GROVE CAMPMEETING ASS'N v. BOROUGH OF BRADLEY BEACH. (No. 58.) (Court of Errors and Appeals of New Jersey. May 15, 1919.) Appeal from Supreme Court. Action by the Ocean Grove Campmeeting Association against the Borough of Bradley Beach. A judgment for defendant was reversed on plaintiff's appeal by the Supreme Court, and defendant appeals. Affirmed. Ward Kremer, of Asbury Park, for appellant. Patterson & Rhome, of Asbury Park, for respondent. herein should be affirmed, for the reasons exPER CURIAM. The judgment under review pressed in the opinion delivered by Chief Justice Gummere in the Supreme Court. 103 Atl. 812. (106 A.) sey City, for appellant. Walter J. Larrabee, of New York City, and Fred W. Van Blarcom and William B. Gourley, both of Paterson, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Griffin. 104 Atl. 141. STATE v. AGNESI. (Court of Errors and Appeals of New Jersey. March 3, 1919.) Error to Supreme Court. Salvatore Agnesi was convicted of crime. The conviction was affirmed by the Supreme Court, and he brings error. Affirmed. Ward & McGinnis, of Paterson, for plaintiff in error. Michael Dunn, of Paterson, for the State. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court. 104 Atl. 299. WEST SHORE R. CO. v. STATE BOARD OF TAXES & ASSESSMENT et al. (Nos. 56-59, 62, 74, 105.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Certiorari by the West Shore Railroad Company, by the United New Jersey Railroad & Canal Company, by the Central Railroad Company of New Jersey, by the Hudson and Manhattan Railroad Company, by the Raritan River Railroad Company, by the Lehigh Valley Railroad Company and others, and by the Erie Railroad Company to review the proceedings of the State Board of Taxes and Assessment and others. Tax in part set aside, and in other respects affirmed, and prosecutors appeal. Affirmed. Collins & Corbin, of Jersey City, for appellants. John W. Wescott, Atty. Gen., for respondents. PER CURIAM. The judgments under review in the above-stated cases should be affirmed. for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 104 Atl. 335. BROWNE v. KING et al. (Supreme Court of New Jersey. Feb. 21, 1917.) Proceeding in mandamus by J. Alexander Browne against Edwin C. King and others. Application denied. Appeal dismissed 102 Atl. 383. Ward & McGinnis, of Paterson, for petitioner. William I. Lewis, of Paterson, for defendants. PER CURIAM. Dr. Browne claims to be health officer of Paterson. Dr. Clay is in possession of the office. Previous litigation has been inconclusive as to the right to the office. The Supreme Court, on a certiorari by Dr. Clay, reviewed action of the civil service commission adverse to him, and dismissed the writ, upon the ground that Dr. Browne was entitled to the office. 88 N. J. Law, 502, 96 Atl. 363. The Court of Errors and Appeals affirmed the judgment, but not on the merits; it held that certiorari to the civil service commission was not the proper way to raise the question. 89 N. J. Law, 194, 98 Atl. 312. We are now asked for a mandamus on the board of finance of Paterson to compel the payment of the salary to Dr. Browne. This would be proper, if the title to the office were settled. The relator thinks it is settled, as far as this court is concerned, by our prior decision. But after the expression of the view of the Court of Errors and Appeals the opinion of this court ceased to be important, except as an expression of the opinion of a learned judge. It was held that the court was without jurisdiction. What we are now asked to do is to determine the title to a public office in a proceeding by mandamus substantially against the city, to which the incumbent is not made a party. Obviously, that cannot be done. But, even if Dr. Clay could properly be made a party to a mandamus, he could not be concluded. He is entitled to be heard before a jury on a quo warranto Leeds v. Atlantic City, 52 N. J. Law, 332, 19 Atl. 780, 8 L. R. A. 697, is relied on. But the point of that case was that the relator had never been out of office, and that the court had upon certiorari annulled the only thing which challenged the relator's right. If Dr. Browne had secured the setting aside of the proceedings appointing Dr. Clay, he would perhaps be in the position of Leeds. But, as the case stands, he is not entitled to the salary, unless he is entitled to the office; the title to the office is necessarily in question, and can only be determined on a quo warranto. Let the application be denied, with costs. KOPPER et al. v. BERNHARDT. (Supreme Court of New Jersey. March 7, 1917.) Appeal from District Court of Perth Amboy. Action by Herman Kopper and another, partners trading as Kopper & Klein, against John F. Bernhardt. Judgment for plaintiffs, and defendant appeals. Affirmed. Judgment affirmed 103 Atl. 186. Theodore Strong, of New Brunswick, for appellant. Thomas Brown, of Perth Amboy, for respondents. PER CURIAM. This action for damages grew out of a rear-end collision between an automobile truck of the defendant and a horse and wagon of the plaintiff. The district court, sitting without a jury, gave judgment for the plaintiff, from which the defendant appealed. The questions argued by the appellant were raised in the court below by motions or requests to find. The first contention is that the driver of appellee's team was negligent in not having such a light as is required by the statute. The judgment rendered by the court was in legal effect a finding against this contention, and there was testimony to support such a finding. The next contention is that the defendant was not negligent. There was a clear conflict of testimony upon this question, and the decision by the court below is therefore not subject to review. The same observation applies to the contention that the damages were excessive. The last contention is that the court did not make a specific finding as to each request presented by the appellant. The judgment was the court's answer, and the benefit that arises from the making of the request is the right it gives to review the court's action upon points that are subject to review upon appeal. Finding no error as to any matter of law, the judgment of the Perth Amboy district court is affirmed. |