manifest wrong or injury by the admission of the declaration. In material matters it agreed with the testimony of the prisoner, except in the statement that the prisoner's wife was in another room. This might have been harmful if the defendant was entitled to have the jury consider whether his offence was not reduced to manslaughter. But the rule is not that the offence is always reduced to manslaughter when a husband kills the paramour of his wife, in the act of adultery, but only when the circumstances are such that the husband raay be supposed to have acted in a sudden transport of passion, or heat of blood upon a reasonable provocation, and without malice. The provocation must be of such a character and so close upon the act of killing that the prisoner for the moment could be considered as not master of his own understanding. If such an interval of time elapsed between the provocation and the act of killing as is reasonably sufficient. for reason to resume its sway, the act is not mitigated to manslaughter. 1 Russell on Crimes 786; Brown v. State, supra (at pp. 710, 711, 713). The rule is not applicable to a case like the present where the husband kills the adulterer deliberately and upon revenge after the fact and sufficient cooling time. 1 Russell 724. In this case the defendant knew of the adulterous relations, as he says, between his wife and the decedent, and armed with a deadly weapon was seeking him out in the hope and expectation of catching him in the act. Rules applicable to conduct due to a transport of passion cannot apply to so deliberate an act.

The objection that there was no proof that the deceased believed in a Supreme Being or in a future state of punishment and reward is unsubstantial. The law is settled for us by what this court said in Donnelly v. State, 26 N. J. L. 601, 620.

The evidence of threats, so far as it was excluded, was properly excluded; the prisoner sought the decedent notwithstanding his knowledge of the threats. In fact he was allowed to testify to the threats himself.

The trial judge charged the jury that if they took the prisoner's version of the case, they must find him guilty of

92 N. J. L. Trenton v. Trenton & Mercer Co. Tract. Corp.

manslaughter at least. This was favorable to the prisoner if self-defence was excluded. The prisoner's own claim was either that he acted in self-defence, or in a transport of passion caused by finding the deceased in bed with the prisoner's wife. The first claim being inadmissible, the second only is to be considered, and that on the prisoner's own claim, merely reduced the crime from murder to manslaughter. The judge might well have told the jury that under the circumstances of this case the grade of crime was not reduced to manslaughter.

Let the judgment be affirmed.

THE INHABITANTS OF THE CITY OF TRENTON AND EVERETT TOWNSEND, PROSECUTORS, v. TRENTON AND MERCER COUNTY TRACTION CORPORATION ET AL., RESPONDENTS.

Argued October 16, 1918-Decided October 18, 1918.

Whether a street railway shall run some parts of its line at a loss, perhaps with a view to future development or future gain or with a view to greater public service, is a business question to be determined by the railway, subject to the control of the board of public utility commissioners, and the fact that the street railway loses money by the operation of suburban lines is no valid reason why the rate charge throughout its whole system should not be increased.

On certiorari.

Before Justice SWAYZE.

For the prosecutors, George L. Record (Charles E. Bird with him).

For the traction corporation, Frank S. Katzenbach, Jr. (Edward M. Hunt with him).

For the public utility commissioners, L. Edward Herrmann.

Trenton v. Trenton & Mercer Co. Tract. Corp. 92 N. J. L.

The opinion of the court was delivered by

arc

SWAYZE, J. Most of the points made in this case sufficiently dealt with in the opinion in O'Brien v. Public Service Railway Co., ante p. 44. The only argument calling for remark is that the street railway lost $86,000 a year by its operation of suburban lines, and that this loss cannot be made up by profits on the operation of lines in the city of Trenton. Whether the railway shall run some parts of its line at a loss, perhaps with a view to future development or future gain, perhaps with a view to greater public service, is a business question to be determined by the railway subject to the control of the public utility commission. It is settled that the correct legal test is the effect on the railway's entire line and not upon that part which was formerly a part of one of the consolidating roads. St. L. & San Francisco Railway v. Gill, 156 U. S. 649, 665. The test has recently been applied in the case of a street railway. Puget Sound Traction Co. v. Reynolds, 244 Id. 574. A rule which would deprive suburban communities of street railway service might be much to the advantage of great cities like Trenton, but work harm to rural communities, and perhaps be to the disadvantage of the state as a whole. There is a general public interest in having thinly populated and relatively poor sections helped by the more densely populated and richer communities. Public roads are a good illustration. We can readily picture to ourselves the state of our roads if every mile depended for its upkeep upon the revenues traceable to that mile. The law as to railways is settled adversely to prosecutors' contention.

The order in this case must be affirmed, with costs.

FRANK A. BERRY, RESPONDENT, v. ROBERT J. O'NEILL AND MARY J. O'NEILL, APPELLANTS.

Submitted March 21, 1918--Decided June 19, 1918.

1. The mere carrying on of negotiations on Sunday will not invalidate a contract completed on a secular day. The final consummation of the contract on Sunday is necessary to bring it within the prohibition of the Sunday statutes.

2. It is open to the trial judge, sitting without a jury, to determine that the plaintiff's contract of employment as an architect to make plans for a house and garage was not a Sunday contract, when the evidence tended to show that, though the parties on a Sunday discussed the probable cost of various kinds of houses and the architect's customary charges, yet the Sunday interview terminated to give the plaintiff a chance to "think it over" and the defendant an opportunity to purchase a lot on which to build and decide upon the character of house desired, and the parties later, on a week day, agreed upon the employment to make plans, not only for a house of a designated cost, but also for a garage.

On appeal from the Atlantic City District Court.

Before Justices SWAYZE, TRENCHARD and MINTURN.

For the appellants, Ulysses G. Styron.

For the respondent, Lee F. Washington.

The opinion of the court was delivered by

TRENCHARD, J. The plaintiff below brought this suit to recover for services rendered as architect in drawing plans and specifications and taking estimates from various contractors for a frame house and brick garage for the defendants.

The trial judge, sitting without a jury, rendered judgment. for the plaintiff, and the defendants appealed.

We are of the opinion that the judgment must be affirmed. At the trial it appeared that the services were rendered and that the claim therefor was unpaid.

The defendants' sole contention on this appeal is that the evidence showed that the contract of employment, upon which the judgment rests, was made upon a Sunday, and was therefore void.

In general a contract made on Sunday is void. Rosenblum v. Schachner, 84 N. J. L. 525, and cases there cited. But the mere carrying on of negotiations on Sunday will not invalidate a contract completed on a secular day. The final consummation of a contract on Sunday is necessary to bring it within the prohibition of the Sunday statutes. Burr v. Nivison, 75 N. J. Eq. 241.

Tested by this rule we think the contract of employment in the present case was not invalid. True there was an interview on Sunday between the parties at which the probable cost of various kinds of houses was discussed and the plaintiff's customary charge for drawing plans and supervision was asked and stated. But the defendants had not yet acquired a lot upon which to build, nor decided upon the kind and cost of the house desired, and the Sunday interview terminated to give the plaintiff a chance to "think it over" and the defendants an opportunity to purchase a lot and decide upon the character of house required. Later the defendants acquired a lot, and determined to build, not only a house of a designated cost, but also a garage, and the interview at which the employment of the plaintiff to plan these was agreed upon, was on a week day.

Obviously in this state of the proof it cannot be said that the judgment in question rests upon a Sunday contract. The judgment below will be affirmed, with costs.