jury. Many witnesses showed that he was | That witness is able to say that no person In the habit of getting drunk.

present, Forwood or any one else, made any statement in his hearing to indicate that Forwood was a drinking man."

So, without further reference to the testimony, it is clear that the appellant did not show that Mr. Forwood had made any statements at the time the answers were written in the application, which would relieve her of the barrier to recovery that the answer to question C furnishes, in view of the uncontradicted evidence that his answer to it was false. We will, therefore, affirm the judgment for the reasons we have given, with

If a beneficiary is to be permitted to prove that the application did not truly state what the insured said, notwithstanding the fact that he declared that such written statements were true, and had in his possession, attached to his policy, a copy of the application for some months which showed what he had been reported to the company as saying, it must at least be done in a positive and certain way, | and not by the use of ambiguous expressions. It must be remembered that we are dealing with a subject within the knowledge of the applicant, and not necessarily, or even pre-out discussing the other ground relied on by sumably, within the knowledge of the insurer. As reflecting upon the importance of such questions in the opinion of those in charge of this company, we will quote from the testimony of the medical director of the appellee. He testified: "That the company will not insure the lives of people who frequently become intoxicated, because it is a well-known fact that the rates for life insurance will not cover the additional mortal- (Court of Errors and Appeals of New Jersey.

the appellee, or the plaintiff's prayers, the
rejection of which necessarily followed the
instruction given by the court.
Judgment affirmed, the appellant to pay
the costs.

(82 N. J. L. 610) HERR v. BOARD OF EDUCATION OF NEWARK.

April 26, 1912.)

(Syllabus by the Court.)

1. EMINENT DOMAIN (§ 152*)-PROCEEDINGS
TO ASSESS COMPENSATION-ISSUES.
In condemnation proceedings, the proper
issue for trial is the value of the land as a
whole, regardless of any estates therein or of
any liens thereon, or any easements or servi-
tudes to which it may be subject.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 403-406; Dec. Dig. § 152.*]

ity that it is known that this or any other company would have to provide for if the person insured is intemperate. By additional mortality witness means mortality above the rates of the amount provided for by the rates for insurance. That persons who are intemperate and frequently get drunk do not live as long as other persons. That the same is true with regard to the sale and handling of liquors.” He also said, in answer to a question, that his company would | not insure a man "if I knew it was habitual 2. EMINENT DOMAIN (§ 152*)-RIGHT TO COMwith him to become intoxicated once in every two months," and, again: "That witness' company does not insure persons who frequently become intoxicated, if it knows at the time such application is made such person becomes intoxicated. That witness considers the action and habits of a person very material to the risk assumed under the policy by the Prudential Company." Dr. Souder, the medical examiner, testified that he

got the information which enabled him to write the answers from Mr. Forwood, that he asked Forwood the questions, and he made those answers. It is true that on cross-examination he said he could not give the details of the conversation that took place, could not give his exact words, as he did not remember that far back, but in answer to the question, "Tell us what he told you?" he said, "That is indicated by the answers, that he did not use those liquors; that he used none." On redirect examination he said: "That, if witness had seen anything there to indicate Forwood was a drinking man, he would have reported it, and he would not have recommended him as a firstclass risk. If any one had told him anything different than what he had reported to the company witness would have investigated.

PENSATION
ΤΑΚΕΝ.

OWNER OF PROPERTY NOT

The owner of a tract not taken by condemnation proceedings cannot be allowed for damages caused by the condemnation of land nants for the benefit of the tract not taken. of another owner that is restricted by cove

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 403-406; Dec. Dig. § 152.*]

3. EMINENT DOMAIN (§ 238*)-PROCEEDINGS TO ASSESS COMPENSATION-APPEAL.

lating condemnation proceedings, the owner of Under the act of 1900 (C. S. § 2182) reguany property right in the land sought to be condemned may appeal from the award of the commissioners.

Domain, Cent. Dig. §§ 614, 619; Dec. Dig. § [Ed. Note.-For other cases, see Eminent 238.*]

4. EMINENT DOMAIN (§ 238*)—PROCEEDINGS TO ASSESS COMPENSATION-APPEAL.

Where the petition in condemnation proceedings makes parties the owners of land not I taken who claim a right therein by reason of restrictive covenants in their favor, those owners may appeal.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 614, 619; Dec. Dig. § 238.*]

Error to Circuit Court, Essex County. Action by Charles F. Herr against the Board of Education of Newark. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

For other cases see same topic and section NUMBER 14 Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Charles M. Myers, of Newark, for plaintiff | quired compensation to be made to the ownin error. Riker & Riker, of Newark, for de- er or owners of the land did not require fendant in error. compensation to be made to mortgagees specifically. We used this language: "The acSWAYZE, J. [1] The board of education tion of the city authorities has thus the disof Newark sought to condemn lands former- tinctive qualities of a proceeding in rem, a ly owned by Paul Buchanan, and devised by taking, not of the rights of designated perhim to his wife for life, with remainder to sons in the thing needed, but of the thing his daughter, subject to a power of sale in itself, with a general monition to all persons his executors. It made parties to the pro- having claims in the thing. When, by the ceedings the defendants in error, who were appraisement of the commissioners, the price owners of land in the vicinity of the tract of the thing is fixed, that price stands insought to be condemned, and it alleged that stead of the thing appropriated, and reprethey might have a claim against the proper- sents all interests acquired. The Legislaty by reason of restrictive covenants. The ture has not imposed upon the city officials commissioners made an award to the execu- the duty of searching out all these interests tors of Buchanan, and awarded nothing to and assigning to each its just equivalent. It the defendants in error, who thereupon took has contented itself with the simple direcan appeal. Separate issues were framed, tion that the fund shall be paid to him who and separate judgments entered, in favor of is presumably entitled to it, the general owneach. The principal argument was directed er of the land. Where no other claimant into the question whether the owners of land tervenes, that course will usually meet the not a part of the tract actually taken, whose ends of justice. But if, in any special case, lands are benefited by restrictive covenants, this owner ought not, in equity, to receive are entitled to compensation when the land the fund, the Court of Chancery will, at the is condemned for a purpose, which, when ef- instance of any interested complainant, take fectuated, will amount to a violation of the charge of its proper distribution, and so serestrictive covenants. An important prelim- cure those particular equities which the geninary question is the proper procedure un- erality of the statute has left without exder the statute of 1900. C. S. 2182. This is press protection." These cases establish the not left in doubt by our decisions. The practice, and, where a railroad company had question was thoroughly considered by this paid the award into court, it was held that court in Bright v. Platt, 32 N. J. Eq. 362. In it was entitled to have the lien of the muthat case a railroad company, under a char-nicipality for taxes discharged out of the ter containing provisions for condemnation | fund, although the municipality had not been similar to those contained in the act of 1900, made a party to the condemnation proceedcondemned land that was subject to a mortgage, but failed to make the mortgagee a party. An award was made to the mortgagors. Subsequently the amount of the award was paid into the Court of Chancery, and the mortgagors sought to obtain it for themselves upon the theory that the award having been made to them was for their interest only, and that the mortgagee had no interest therein. We held that the fund did not represent merely the estate of the mortgagors, but the whole value of the land; and we said that an interpretation of the act "which devolved upon these commissioners the duty of estimating the value of each particular interest in the land to be taken would not only do violence to the language of the provisions, but would also impose upon these appraisers obligations which, with their lim ited means of investigation, their want of knowledge of nice legal and equitable distinctions and their inability to settle authoritatively the rights of the parties, they could not conscientiously assume to discharge. Their simple duty is to ascertain what sum of money is an equivalent for the rights which the railroad company seeks to acquire, and the injuries it is to inflict by the construction and operation of its road." This decision has been consistently followed. In Crane v. Elizabeth, 36 N. J. Eq. 339, we was not framed in that aspect, but dis

ings. In re Sleeper, 62 N. J. Eq. 67, 49 Atl. 549. In Zimmerman v. Hudson & Manhattan R. R. Co., 76 N. J. Law, 251, 71 Atl. 127, a lessee sought to review the action of commissioners proceeding under the Act of 1900, upon the ground that they erred in reporting the value of the property taken and the damages sustained by the taking in a lump sum, instead of making a separate award of the moneys to be paid to the applicant for his leasehold interest, and of the amount to be paid to Hill, the owner of the fee. But the Supreme Court held that the commissioners had followed the rule laid down in Bright v. Platt, and refused to review their action. In Pennsylvania R. R. Co. v. National Docks, etc., Co., 57 N. J. Law, 86, 30 Atl. 183, the same rule was followed. In Daab v. Hudson County Park Commission, 77 N. J. Law, 36, 71 Atl. 51, the Supreme Court held that section 7 of the Act of 1900 did not authorize a separate action at law by a lessee for the value of his estate in the lands condemned; that an action to recover the amount of the award must be one suit only for the whole amount.

[2] It cannot be said in this case that the proceeding was, in effect, a proceeding against the defendants in error to condemn their interests in the land. The petition

ror had a claim against the property sought | who have appeared before the commissionto be acquired by reason of being owners of ers are entitled to notice of the appeal, and nearby restricted properties, or by reason of it logically follows that they may participate holding mortgages upon said properties. The therein; otherwise the notice would serve proper issue, therefore, was the value of the no useful purpose. These provisions were Buchanan land as a whole, regardless of any obviously designed to give all parties interestates therein or of any liens thereon, or ested a chance to review the action of the any easements or servitudes to which it commissioners. If the word "owner" is might be subjected. Whether or not the re- limited to the owner of the bare legal estate, strictive covenants operated to create equita- it may often happen that his interest is of ble servitudes in the Buchanan land is not the slightest possible value. The real party now in question. Separate issues were not in interest may be a mortgagee holding a justified to ascertain the separate damages mortgage for the full value of the property, of the owners of the nearby properties. or a lessee having a term of years to come "It is an established rule of law in proceed- equal almost to a fee. In Pennsylvania R. R. ings for condemnation of land that the just v. National Docks, etc., Co., 57 N. J. Law, 86, compensation which the landowner is enti- 30 Atl. 183, the lessee was held to be the tled to receive for his lands and damages owner with whom the company must attempt thereto must be limited to the tract, a por- to agree before beginning proceedings to contion of which is actually taken. The pro- demn, and the judgment was affirmed by priety of this rule is quite apparent. It is this court. 57 N. J. Law, 457, 35 Atl. 1130. solely by virtue of his ownership of the tract If, therefore, the defendants in error were invaded that the owner is entitled to inci-owners of a property right in the Buchanan dental damages. His ownership of other lands is without legal significance." Currie v. Waverly, etc., R. R. Co., 52 N. J. Law, 391, 392, 20 Atl. 57, 19 Am. St. Rep. 442. Although this language was not necessary to the decision of that case, it was subsequently approved by this court as a correct statement of the law. Bergen Neck R. R. Co. v. Point Breeze Ferry & Improvement Co., 57 N. J. Law, 163, 191, 30 Atl. 584. It has not been shaken by the decision in Re Lehigh Valley R. R. Co., 78 N. J. Law, 699, 76 Atl.

1067.

We there held that testimony which had been rejected by the trial court upon the ground that it related to damages to a separate tract was admissible, not to show the diminution of value of lands not taken, but to show that the land taken had a greater value because an advantageous use could be made of it in connection with the other parcels. That rule cannot be applied to a case where the tracts belong to different owners. The trial judge in the present case allowed testimony that the use of the Buchanan tract for a schoolhouse would affect the

value of the property of the defendants in error. This amounted to allowing the owner of a tract not taken to recover damages for the injury to that tract. It involved a very different question from the value of

lot, they had a right to appeal and their appeal should not have been dismissed, but a proper issue should have been framed, provided, of course, that notices had been given to the parties in interest as the statute requires. It was not incumbent upon the trial court to determine upon a preliminary motion to dismiss the appeal whether or not the defendants in error were the owners of a property right in the Buchanan lot. It was enough that the record showed that they had been made parties as such. They were bound, of course, to make the owners of the fee parties to the appeal. The issue is the value of the land as a whole, and, inasmuch as the amount to be finally received by the owners of the fee depends not only on the total amount, but also upon the amount to be deducted for the value of any special interest of others in the land taken, the former are vitally interested. The case fails to show whether the owners of the fee were made parties to the appeal. The record must therefore be remitted for further proceedings in accordance with the views we have expressed.

(82 N. J. L. 726) DREISBACH v. ECKELKAMP.

his property right, if such he had, by way of (Court of Errors and Appeals of New Jersey.

servitude, in the tract actually taken. The judgment must therefore be reversed.

March 28, 1912.)

(Syllabus by the Court.)

1. APPEAL AND ERROR (§ 1010*)-REVIEWFINDING OF COURT.

[3, 4] Whether the reversal should result in a new trial upon a proper issue, or in a dismissal of the appeal, depends upon the Where a case is tried by the judge, a jury right of the appellant to review the award. being waived, and his finding on the facts is Section 9 of the act permits an appeal by excepted to, the exception will not be sustainthe petitioner or owner of any of the landed if there was evidence supporting the finding. or other property. We think the language [Ed. Note.-For other cases, see Appeal and is broad enough to warrant an appeal by Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]

any one who has been made a party as an 2. SALES (§ 263*)-WARRANTY OF TITLE. owner of a property right in the land. SecThe rule that, upon the sale of personal tion 10 of the act recognizes that all parties property, the vendor impliedly warrants the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

title and that the subject of the sale is unincumbered, does not apply where the vendee is aware of the incumbrance, and it appears from the circumstances of the transaction that neither of the parties contemplated the conveyance of an unincumbered title.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 746, 749-751, 763; Dec. Dig. § 263.*]

Error to Circuit Court, Hudson County. Action by Oscar Dreisbach against Mary Eckelkamp. Judgment for plaintiff, and defendant brings error. Affirmed.

Charles L. Carrick, of Jersey City, for plaintiff in error. John J. Fallon, of Hoboken, for defendant in error.

mortgage. In a conversation with Dreisbach which was testified to he told him that, if he (Bewig) could not pay him the entire purchase money, he would have an allowance made on the brewery mortgage, and this was agreed to by Dreisbach.

The court found that neither of the parties contemplated the passing of an unincumbered title to the orchestrion.

The judgment of the court below will be affirmed.

(82 N. J. L. 251) LEUTERITZ v. ICE CONSUMERS' & SUPPLY CO.

1912.)

1. MASTER AND SERVANT (§§ 101, 102*)-IN-
(Syllabus by the Court.)
JURIES TO SERVANT-SAFE PLACE TO WORK.
A master is bound to take reasonable care
to have the place in which he directs his serv-
ant to work reasonably safe for the doing of
the work, and free from latent and concealed
dangers.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*]

2. MASTER AND SERVANT (§§ 203, 219*)-—IN

JURY TO SERVANT-ASSUMPTION OF Risk.

While the servant assumes all the ordinary and usual risks incident to the employment, and all risks which he knows, or may, in he does not assume risks not incident thereto, the exercise of reasonable care, know, to exist, nor the risks of latent or concealed dangers.

[Ed. Note. For other cases, see Master_and Servant, Cent. Dig. §§ 538-543, 610-624; Dec. Dig. §§ 203, 219.*]

3. MASTER AND SERVANT (§ 205*)—INJURY TO SERVANT-ASSUMPTION OF RISK.

In the absence of knowledge to the contrary, a servant has the right to assume that his master has exercised due care and diligence to fulfill the obligations imposed upon him by law, and he does not assume the risk consequent upon the failure of the master to discharge his duty.

TREACY, J. This was a case tried by the (Supreme Court of New Jersey. March 30, court without a jury; the jury having been dismissed by consent. Plaintiff below brought suit for the purchase price of an orchestrion which he claimed to have sold to one Bewig, of whose estate defendant below is the executrix. The errors assigned are, first, that the lower court refused to nonsuit at the close of plaintiff's case upon the ground that there was no evidence from which a conclusion could be drawn as a matter of fact that there was a sale of the orchestrion, and also refused to enter judgment at the close of the case for the defendant on the same ground; and, second, that the court refused to nonsuit upon the ground that the orchestrion was sold under an implied warranty of title which was broken by the failure to remove a chattel mortgage, which was then an incumbrance upon it, and refused to enter judgment for defendant for the same reason. [1] There was evidence in the case upon which a jury might have found that a sale of the orchestrion to Bewig had taken place. The court therefore was justified in so finding. The orchestrion was taken from Dreisbach's saloon by Bewig, and while Dreisbach himself was not permitted to testify as to the transaction, because of Bewig's death, another witness testified to a conversation between Dreisbach and Bewig, in which the former demanded the price of the orchestrion, stating that he was about to go to Germany, and the latter said he could only pay part of the price then, and suggested that the balance be allowed to stand until Dreisbach returned. This suggestion being refused, Bewig said that he would try to have the whole amount for Dreisbach before he sailed. There being evidence, therefore, upon which the court could find that there was a sale of the orchestrion to Bewig, a finding to that effect will not be disturbed. [2] The rule that the existence of an outstanding incumbrance is a breach of the warranty of title which is implied upon a sale of chattels does not apply because the evidence shows that Bewig knew at the time of the sale of the orchestrion that there was a chattel mortgage upon it. Bewig was the Action by Otto Leuteritz against the Ice collector for the brewery which held the Consumers' & Supply Company. Judgment

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 547-549; Dec. Dig. 205.*]

4. MASTER AND SERVANT (§ 288*)-INJURY TO

SERVANT-DEFECTIVE APPLIANCES.

Where a servant is put to work upon a slippery platform 14 feet above the ground, and the master has provided such platform with wide and 4 of an inch thick, which was fastena guard rail made of "furring lath" 14 inches ed to its support by only one nail, and which guard rail broke and fell to the ground when it, causing the servant to fall to the ground and the servant slipped and put his weight upon injuring him, it was erroneous to nonsuit the servant, in an action to recover for such injuries, upon the ground that he assumed the the servant had made no examination of the risk, when it appeared from the proofs that condition of the railing.

[Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 1005, 1068-1088; Dec. Dig. § 288.*]

Appeal from District Court of East Orange.

for defendant, and plaintiff appeals. Reversed. | learned trial judge seems to have granted Argued November term, 1911, before the nonsuit upon the ground that the injuTRENCHARD, MINTURN, and KALISCH, ry to the plaintiff was the result of a risk, which was inherent in his employment, and which the plaintiff assumed. This, we think,