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ABUTTING LANDOWNERS. || iff's land and enterprise, which

would serve to prevent resultWhere a municipality, in pursu

ing damage. That the failure ance of state legislative sanc

to construct the necessary detion, assumes control of the

vice gave the plaintiff a right trees within its territory, an

of action on the covenant for abutting owner, on a street of

damages. That the action was such municipality, is relieved

ex contractu and not ex delicto, from the care of a tree stand

and that the question whether ing on the sidewalk in front of

there was a breach and the rehis premises, to the extent that

sulting damage were jury queshe will be exempt from liability

tions. Gumaerd Lead and Zinc to respond in damages, in a civil

Co. v. Erie R. R. Co.,

216 action, to an individual who has suffered an injury of which the tree was a producing cause.

ADVERSE USER. Rose v. Slough,


Evidence that people walked up

and down, going from one place ADJOINING LANDOWNERS. to another across railroad tracks

in a city, across the ties; that Plaintiff and defendant entered

there was no sidewalk across the into a covenant as follows:

railroad, no planking, no gates "The party of the second part|

or fence, when accompanied by (defendant) covenants and

failure to produce evidence of a agrees that in case it shall make

defined path, or a location of the any excavation upon the ad-||

lines of the alleged highway, is joining land, which shall inter-|| insufficient to justify submitfere with the natural support

ting to a jury the question of of the surface of such parcel,

the existence of a highway it will construct and maintain across the tracks by adverse such retaining walls or other de user. Drelich v. Erie Railway vices, as may be necessary toll Co., 91 N. J. L. 600, distinprevent its slopes from en

guished. Brooks v. Penna. R. croaching on said parcel." The

R. CO., defendant made the excavation contemplated by the covenant,

ALIENS. but failed to protect the adjoining land, upon which plaint-1. The defence of alien enemy, in iff conducted a mining enter-|| order to be considered in an acprise, until after the damage tion at law, should be made a to plaintiff's shaft had resulted. part of the record and stated Held, that the covenants con-|| with accuracy by an appropriate templated a protective construc-!| pleading, or motion under our tion, by defendant, to the plaint-' present practice. It is not fa

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Appeal and Error.


vored by intendment. Heiler v.ll pensity, it must necessarily apGoodman's Motor, &c., Co., pear that the biting was done


in self-defence, or by invitation

and under such circumstances 2. Plaintiff, a citizen of Germany that the ordinary well-behaved

residing in this state and earn-l: dog, of a kind and gentle dising his living here, sued for position, would have acted in a damages sustained by reason of similar manner, in a similar a collision between his motor situation. Dranou V. Kolmar, cycle and an automobile van. At the trial it appeared that he was born in Germany, had never APPEAL AND ERROR. been naturalized in this country, and was living and work-l1. Where the record brought up ing in this state as aforesaid.||

for review of a case tried in the Held, that it was improper to

District Court by a judge sitnonsuit him on the ground that

ting without a jury simply prehe was an alien enemy, first, be

sents a judgment based upon cause the defence had not been

conclusions of the court, withpleaded or otherwise entered

out any objections or exceptions upon the record; secondly, be

entered or taken by counsel durcause the alien enemy rule is

ing the course of the trial or not applicable to a citizen of an

any request to find certain facts enemy country peaceably resid or conclusions of law, to the reing and doing business here

fusal of which objection might with the implied license and

have been taken, the judgment permission of our government; will be affirmed. Downs Sales there being nothing to show that

Co. v. Owen Magnetic Car Co., he was within any of the classes denounced by the Trading with the Enemy act or any presiden- 2. On an appeal every intendment tial proclamation.

16. is in favor of the correctness of

the judgment below, and doubt

will not lead to a reversal. ANIMALS. Kein v. Katz,


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Where a party, without himself|3. The court having directed a ver

doing an act which would in-|dict for plaintiff for a specified duce an ordinary, good-natured,|| amount, which amount was diskind and gentle dog to bite, isil puted at the trial only as to the bitten by a dog. the owner of propriety of a rate of one dollar the dog is liable in damages for|| per day as a factor, and in no the injury suffered, upon evi-| other respect-Held, that on apdence showing that the dog,|| peal an objection that the period with the knowledge of the of time for which such rate was owner, had a mischievous pro charged was unreasonable, was pensity to bite, whether in untenable, as not within the obanger or not, and in order to jection to the direction, the exsay that a dog who has bitten ception, or the ground of appeal a person did not at the time assigned. N. Y. Central R. R. manifest a mischievous pro-ll Co. v. Petrozzo,


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4. The Court of Errors and Ap-ll pendent judgment by that court,

peals has no jurisdiction or its failure to enter such judg-
power to review or determine ment will not work a reversal
the weight of evidence, on which on certiorari, but the record
a verdict of a jury is found. will be remitted to it for the
Savino v. Goldberg,

617|| entry of such judgment as was

required by law in accordance
See also PRACTICE, 1, 6. with the verdict. Overseer of

the Poor v. Eason,



See CRIMES, 1.

2. In a bastardy case under our

statute, it is not necessary to a
finding against the putative
father, that the testimony of the
mother of the bastard should be



Where the claim of the defendants |3. A bastardy case under our stat-

in an attachment suit is a claim ute is not a criminal but a civil
of right not shown by docu proceeding ; 'the burden of proof
ments which the court can con does not require proof of pa-
strue, but shown by facts and ternity beyond a reasonable
certain acts of a foreign gov doubt; and while the incidental
ernment, the effect of which element of criminality involved
and the inference to be drawn|| in the paternity of an illegiti-
therefrom are proper for inquiry mate child entitles the putative
by a jury, a motion to strike father to present evidence of
out the complaint, based upon good character, which the jury
such defence, will be denied. should consider in connection
Jolina v. Comision, &c., 38 with the other evidence in the

case, the defendant is not enti-

tled to be absolved if the char-

acter evidence, either alone or

in connection with the other evi-

dence, raises no more than a

reasonable doubt that he is the
father of the bastard child. Ib.




1. In section 10 of the statute of

frauds (Comp. Stat., p. 2617 ;

amended, Pamph L. 1911, p.
1. In a proceeding before a statu 703; Comp. Stat., first supp.,

tory tribunal, as in bastardy p. 747), concerning the commis-
cases, when there is a trial de sion of real estate brokers for
novo on appeal with jury before effecting a sale or exchange of
the Court of Common Pleas or land, the word “exchange" has
Quarter Sessions, and a verdict the same meaning as at common
requiring the entry of an inde-1 law. Haber v. Goldberg. 367


Cases Affirmed.


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2. On an agreement between de-11 for commission by the broker

fendant and a third party which upon a sale of other property. provided that deeds for real estate should be delivered and exchanged between them on a cer

CARRIERS. tain date, and an agreement between the plaintiff and defend-||1. A provision in a bill of lading. ant that provided that plaint-ll requiring the giving of notice iff's commission as real estate|| of a claim for damages against broker should be paid by de a carrier, must be given a reafendant on the date set for the sonable construction, and a subdelivery of the deeds, which did stantial compliance therewith not take place because the third on the part of the shipper is party was unable to furnish a all that is required. Hyatt Rolmarketable title to the premises ler Bearing Co. v. Penna. R. R. he was to convey as part of the|| consideration, the commission was nevertheless, earned be- 2. A jitney bus owner, who undercause the defendant sued thell takes to carry for hire all perthird party for breach of the sons who apply for passage, is contract negotiated by the a common carrier of passengers ; broker and recovered damages as such, he owes them a high therefor.

degree of care for their safety. Schott v. Weiss,

494 3. Although in an agreement be

tween a principal and his broker for the sale of real es

CASES AFFIRMED. tate, the rate of commission on the dollar is not provided for as||1. Daisy B. James, Appellant, v. required by the terms of section Delaware, Lackawanna and 10 of the statute of frauds, Western Railroad Co. et al., Re8upra; nevertheless, the fixing spondents. From the Supreme of a sum certain by way of


149 commission is within the true intent and meaning of the act. 2. Jacob Castelbaum, Respondent, and the broker is entitled to re-liv. David Wolfson, Appellant. cover it. Mendles v. Danish,|| From the Supreme Court. 165 74 N. J. L. 333, approved. Ib.

| 3. John Handwerk et al., Re4. A broker, having brought aboutil spondents, v. The Town of Gut

the sale of another property for tenberg, Appellant. From the his principal, and the amount of Supreme Court,

178 the commission to be paid on that sale having been in dispute 4. John Handwerk et al., Re

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by the broker acknowledging tenberg, Appellant. From the payment of a certain sum for Supreme Court,

181 selling the property there in dispute, concluding "and have no||5. Benjamin H. Kaufman, Reclaim whatsoever," does not spondent, v. Elma Mennen Wiloperate as a release of a claimlliams et al., Appellants. From

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