93 N. J. L. Stephens v. Comm'rs Palisades Inter. Park.

"The Palisades Park commission, created by the act of 1900 (Pamph L., p. 163; Comp. Stat., p. 3890), is a state agency, charged with a public duty, to wit, the acquisition and development and improvement of land for a great public park along the Palisades, in the States of New Jersey and New York. It performs no private functions; the commissioners are not even compensated. It may be likened to the corporations called the 'State Home for Girls' (Comp. Stat., p. 4888), the 'State Home for Boys' (Comp. Stat., p. 4880) and the 'State Reformatory for Women' (Comp. Stat., p. 4931); all these are incorporated. The state reformatory commissioners, on a hasty glance at the act (Comp. Stat., p. 4929), seem to be unincorporated. But all are public bodies charged with public duties by direct mandate of the state, and never, so far as I know, has any been held liable for negligence. The present defendant is, I think, undeniably within. the same class, and plainly within the rule laid down in Strader v. Freeholders, 18 N. J. L. 108, and rigorously adhered to in all later decisions, that a public agency, charged with a public duty, is not liable to an individual member of the public for negligence in the performance of that duty. It is true that most of the decisions relate to municipal corporations. Bisbing v. Asbury Park, 80 Id. 416, and cases cited. But that, in my judgment, is incidental, and because as state agencies they are within the broader rule.

"A glance at the act under which defendant operates will show the essentially public character of the corporation and its duties; and in the construction and maintenance of the roads and paths through this public park, the commission, as the state's agent, should no more be liable for mere negligence than overseers of roads at the common law or a municipal corporation or board of freeholders in the absence of a statute imposing liability. The later acts of 1909, page 177, and 1910, page 208, in no way alter the situation. Nor does the fact that the rights reserved of access across the park to lands on the water front. This is a mere incidental limitation of the full public use.

"It is urged that the express power to sue and be sued indicates an intent to subject defendant to liability in damage suits. But this same point was considered and overruled in the Strader case.

"I conclude, therefore, that the defendant is not liable in this action; and under the rule cited, judgment should go for the defendant. Rule may be entered accordingly."

For the appellant, Frank R. Pentlarge.

For the respondent, Thomas F. McCran.

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.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 14.

For reversal-None.

GEORGE H. STEVENS, RESPONDENT, V. FERDINAND COIRIN AND JOSEPH FORMANNS, BUILDERS, AND FERDINAND COIRIN AND LEONIE COIRIN, OWNERS, APPELLANTS.

Submitted July 7, 1919-Decided November 17, 1919.

On appeal from the Supreme Court, in which the following curiam was filed:

per

"This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury.

"Plaintiff, Stevens, and the defendants entered into a contract December 1st, 1915, whereby the plaintiff agreed to furnish to the defendants general plans and information necessary to enable an immediate construction of a practical working plant and process for the manufacture of carbolic acid; and if the defendants should determine to go ahead with the erection and construction of the plant, the plaintiff would complete detailed plans and information, and would supervise the actual construction and erection of the plant. "This suit was brought to recover compensation for such services.

"The contract is somewhat involved and requires careful reading before settling upon the merits of the controversy. here.

"The only ground of appeal requiring consideration is that regarding the charge of the trial judge. We conclude that the judge in his charge properly construed the contract, bearing in mind that it must be construed as a whole, and not with reference to isolated paragraphs alone. So considered, it seems clear that the construction put upon it by the judge was proper.

"The judgment will be affirmed, with costs."

For the appellants, William V. Rosenkrans.

For the respondent, Raymond, Clancy, Marsh & Ellis.

PER CURIAM.

The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

For affirmance-THE CHANCELLOR, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 11.

For reversal-PARKER, J. 1.

Sutton v. Maurice River.

93 N. J. L.

JOSEPH W. SUTTON, APPELLANT, v. THE TOWNSHIP OF MAURICE RIVER, IN THE COUNTY OF CUMBERLAND, RESPONDENT.

Argued June 20, 1919-Decided November 17, 1919.

In view of the Certiorari act of 1903, section 14, a review of the sale for unpaid taxes, and proceedings upon which it was based, is limited to three years from the date of sale.

On appeal from the Supreme Court, in which the following per curiam was filed:

"The writ brings up a sale for unpaid taxes and proceedings on which such sale was based.

"Several interesting questions are argued, but, as we view the case, it is unnecessary to discuss them, as the matter is controlled by section 14 of the Certiorari act of 1903, limiting a review of this character to three years from the date of the sale. Bozarth v. Egg Harbor, 85 N. J. L. 412. The later case of Mitsch v. Riverside, 86 Id. 603, appears to be inapplicable, since the limitation is invoked by counsel in this court and no constitutional right seems to be involved. "The writ will be dismissed."

For the appellant, Walter H. Bacon.

For the respondent, Louis II. Miller.

PER CURIAM.

The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, BERGEN, KALISCH, WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, JJ. 11.

For reversal-BLACK, J. 1.

93 N. J. L.

Talmadge v. N. Y., S. & W. R. R. Co.

MARY TALMADGE, RESPONDENT, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, APPELLANT.

Argued June 25, 1919-Decided June 25, 1919.

On appeal from the Supreme Court, in which the following per curiam was filed:

"This is a workmen's compensation case. The findings of fact, adequately supported by evidence, show. that deceased, an employe of prosecutor, was killed by an accident arising out of and in the course of his employment, viz., by being run over by one of defendant's trains. The train contained cars engaged in interstate commerce, and it sufficiently appears that deceased himself was at the time so engaging. From these premises it is argued that the federal statute applied and is exclusive, and that, therefore, the Sussex Pleas was without jurisdiction.

"The point is settled otherwise for us by the very recent decision of the Court of Errors and Appeals in Winfield v. Erie Railroad Co., 88 N. J. L. 619, in which that court held that the State act would apply unless the employer pleaded and proved that the accident in question was due to the negligence of himself or his servants. No such claim is made here. The judgment must therefore be affirmed."

For the appellant, Collins & Corbin.

For the respondent, William V. Rosenkrans.

PER CURIAM.

The case of Winfield v. Erie Railroad Co., 88 N. J. L. 619, upon which the Supreme Court based its decision, was later overruled by the Supreme Court of the United States in Erie Railroad Co. v. Winfield, 244 U. S. 170; 61 L. Ed.