suggested by a hypothetical question, the anWhere the evidence justifies the points swer to which is material to the issue, such question is not irrelevant.

TION.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*] 3. TRIAL (§ 260*) - INSTRUCTIONS - REPETIaffirm a proposition, which had already been The refusal of a request to specifically affirmed in substance in the general charge, is not ground for reversal.

he does that which, as far as the nature of [2. EVIDENCE (§ 553*)-HYPOTHETICAL QUESthe case will admit, is the equivalent of such TIONS. taking. By giving the notice, he makes the trustee or holder of the fund his own trustee. On this theory, it was held by the House of Lords, in a case in which the subsequent assignee had given notice, but had not made inquiry, that he had acquired priority over a prior assignee, who had given no notice. Foster v. Cockerell, 3 Clark & Fin. 455. To so hold would be in harmony with the registry acts and with the various acts, like the mechanics' and municipal lien acts, that give priority in the order of notice. I do not, however, think it necessary to decide the question, inasmuch as I have come to the conclusion that the Murphy assignments are prior on the ground stated.

I ought to add that Mr. Bolles put in evidence two letters, said to have been sent by Mr. Murphy, in which assignments are referred to. The signatures are admitted; but the theory of counsel for the Murphy estate is that Charles Bolles, being a chemist, was able to efface the original matter and substitute, in typewriting, that which we now find. He proves that they were not written by the typewriting machines ordinarily used by Mr. Murphy and he points to their physical condition as indicating that papers, placed in a drawer, or box, in the Point Pleasant house, could hardly have been burned in the fire which destroyed it in the way indicated by their present appearance. He seeks, further, to discredit the letters by the evidence of Mr. McConchie and Mr. Allen. The evidence tends to cast suspicion upon them. Whether it does more may be open to question. It is at least strange that Mr. Murphy should, after having asked for and obtained the papers, which he must have known would impair, if not destroy, his security, lend his money upon them and require Mrs. Bolles to swear, in effect, that they were nonexistent. I think the case can, without deciding these troublesome questions of law and fact, be satisfactorily disposed of according to the doctrine of the case of the Washington Bank v. Beatty, to which I have already referred.

(82 N. J. L. 743)

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 4. EVIDENCE (§ 8*)-INSTRUCTIONS.

An instruction that, if the jury should find that the gate, the fall of which caused the injury, was blown down by a wind of only from 35 to 40 miles per hour, such a wind would not absolve defendant from liability is not error. It is a matter of common knowledge that a wind of this velocity is not an extraordinary wind.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 7; Dec. Dig. § 8.*]

Error to Supreme Court.

Action by Andrew Schreiner against the
New York & New Jersey Telephone Company.
Judgment for plaintiff, and defendant brings
error. Affirmed.

Edward A. & William T. Day, for plain-
tiff in error.
M. Weinberg, for defendant in error.
Nathan Kussy and Benjamin

PER CURIAM. The judgment in this case is affirmed upon the per curiam opinion of the Supreme Court which was as follows:

"While passing along North Canal street in Newark, the plaintiff was injured by the falling of a wooden gate, which defendant maintained on its premises, and which hung on a trolley.

"The jury found for the plaintiff. He was an epileptic, and an operation had been performed on his head some four years prior to the accident.

[1] "It is insisted as a first assignment of error that the court improperly admitted testimony of an expert witness concerning the effect of that operation. The challenged question was asked of Dr. Hinckley, and was as follows: 'Q. Suppose an epileptic were operated upon and pressure removed-bone remov.

SCHREINER v. NEW YORK & N. J. TELE-ed-from the head, and suppose this epileptic

PHONE CO.

had been subject to attacks, which were entirely absent for eight months after such op(Court of Errors and Appeals of New Jersey. eration, to what would you attribute their March 4, 1912.)

(Syllabus by the Court.)

absence? The question was objected to by counsel for the defendant; the ground of ob

1. APPEAL AND ERROR (§ 232*)-REVIEW-jection being, "That is not this case.' The anOBJECTIONS NOT RAISED BELOW.

Grounds of objection to the admission of evidence, which were not presented to the trial court, will not be considered on writ of error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1430, 1431; Dec. Dig. § 232;* Trial, Cent. Dig. §§ 211-222, 691-693.]

swer to the question was, "The relief of the pressure upon the brain.'

"The contention before us is that the question was improper, because the operation could have no bearing upon the case or the injury suffered by the plaintiff from the accident. It is not suggested before us that

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

the facts embodied in the question were not | But because it is blown down by an ordinary the facts in the case being tried. We can not consider here grounds of objection not presented to the trial court, and consequently this assignment must fail.

[2] "It is further contended that it was improper to permit a hypothetical question, asked of Dr. Hinckley, to be answered. The question was as follows: 'Q. Suppose that a man suffering from epilepsy were subject to epileptic attacks at intervals of a month or two months; now, if, after the happening of an accident, such as I have described, he should have a succession of epileptic attacks, so that they should follow each other with such frequency that there should be eight or ten of these seizures in rapid succession on the night of the accident; suppose the number of these attacks and the intensity of such seizures should diminish as time progressed, but that after the expiration of two years from the day of the accident the epileptic should still be subject to such seizures at intervals of two weeks, and of greater intensity than those to which he was subject prior to the accident-would you state whether, under these circumstances, the accident injured the epileptic temporarily or permanently?'

"The question was objected to, on the ground that the evidence does not justify the form of the question; that in any event it is illegal, irrelevant, and immaterial. We think the evidence did justify the form of the question, and we also think the question was not illegal, therefore; neither was it irrelevant or immaterial. It was material, of course, to show whether the injury resulting from the accident was permanent or temporary. That it is irrelevant, although material, is, of course, absurd; and therefore this assignment must fail.

wind does not exculpate the defendant from
liability. This company was obliged to build,
and see that that fence was maintained, in
such a way as to withstand all the ordinary
occurrences of weather. It was not obliged
to anticipate cyclones, or anything of that
kind. But an ordinary wind must be held,
and is held by law, to be within the contem-
plation of a person or corporation that main-
tains a fence in the position in which this
fence was.
* People cannot build
fences so insecure and so weak, so infirm, as
to fall over upon pedestrians, without being
subject to the duty of explaining. If they
show an unusual wind, an unusual occurrence
of conditions, which the reasonably prudent
man could not fairly be presumed to antic-
ipate, the defendant would be absolved from
liability.' We think this is a substantial com-
pliance with the request.

[4] "It is further contended that there was error in the following instruction of the court to the jury: 'A wind of 35 or 40 miles an hour velocity is not an extraordinary wind. We all know that winds sometimes blow much harder than 35 or 40 miles an hour; and if that wind only blew at that rate I think it is my duty to tell you, as a matter of fact, that that would not be the extraordinary wind which would absolve this defendant from liability.'

"The objection to this instruction is that it, in effect, declares that the testimony discloses a wind of only 35 or 40 miles velocity, and that this, as a question of law, was not sufficient to relieve the defendant of liability. We do not think this instruction undertakes to settle the question of fact, but, upon the abstract proposition, we think the instruction of the court, if the gate was blown down by a wind of that velocity, it [3] "It is further argued that there was er- would not absolve the defendant, was corror in the refusal of the court to charge the rect. A person constructing a gate or fence eighth request of the defendant. The request is bound to use care to prevent it from beis as follows: 'If the jury believes that the ing wrecked by winds which are not of ungate was built with sufficient security to usual occurrence; and it is common knowlwithstand any wind that a reasonably pru-edge that a wind of that velocity is not an undent man ought to have anticipated, and fell only because of a wind of such extraordinary violence or unusual character that a reasonable man would not have anticipated it, then the defendant is entitled to a verdict in his favor.'

"On this phase of the case, the court charged the jury as follows: 'In a case of this kind, this company had a right to maintain a fence (a gate); and it was not obliged to build it so strong and so secure that, under no circumstances, would it ever fall. It might be blown down by a terrific wind, or by some other act of God for which the defendant would not be responsible at all.

usual occurrence.

"It is further contended that the court erred in refusing to charge that, in the absence of any evidence on the part of the plaintiff to show his pecuniary loss, the jury, if they find for him, must limit the amount of their verdict to such sums as will compensate him for pain and suffering, and not for any money loss. There was evidence to show that the plaintiff, by this accident, was deprived of the power of earning money which otherwise, presumably, he would have earned. The refusal to charge, therefore, was proper, and the instruction upon the subject of pecuniary loss was also proper."

(82 N. J. L 345)

SHERMAN v. MAYOR AND ALDERMEN
OF CITY OF PATERSON.

ducting of certain lines of work and labor on Sunday, but excepts specifically from its provisions certain other lines of business.

(Supreme Court of New Jersey. March 18, The ordinance is attacked upon the general

1912.)

1. MUNICIPAL CORPORATIONS (§ 590*)-DEL-
EGATION OF POLICE POWER.
Paterson City Charter (P. L. 1871, p.
808), conferring on the board of aldermen
power to make ordinances to carry into effect
the powers vested in the corporation and to
preserve the public peace and good order, con-
stituted a legislative delegation of the state's
police power to be exercised locally, and con-
ferred on the city authority to pass an ordi-
nance prohibiting the sale of particular arti-
cles of merchandise on Sunday.

ground of illegality, in that it violates the constitutional and common-law rights of citizens, and is unreasonable in that it makes an unwarranted discrimination against the lines of business the transacting of which it specifically prohibits on Sunday.

It will be observed that the general and immemorial policy of the state, as indicated by the vice and immorality act, has been to set aside Sunday as a day of rest upon which the prosecution of any business or [Ed. Note.-For other cases, see Municipal calling excepting those occupations specially Corporations, Cent. Dig. § 1309; Dec. Dig. excepted in the act is prohibited. This act

590.*]

2. MUNICIPAL CORPORATIONS (§ 626*)-ORDI

NANCES-SALE OF MERCHANDISE.

Paterson City Ordinances prohibiting the sale on Sunday within the city of any clothing, shoes leather and findings, hats or hardware, was not invalid as discriminatory in favor of other articles of merchandise not named, since the sale of those specified in the ordinance was also prohibited generally by 4 Comp. St. 1910,

p. 5712.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1380; Dec. Dig. 626.*]

Certiorari prosecuted by Louis Sherman against the Mayor and Aldermen of the City of Paterson to remove an ordinance prohibiting the sale on Sunday in any store, shop, or other place within the city of any clothing, shoes leather and findings, hats or hardware, etc. Relief denied.

Argued November term, 1911, before MIN-
TURN, TRENCHARD, and KALISCH, JJ.
Isadore V. Klenert, for prosecutor.
ward F. Merrey, for defendant.

Ed

has been construed by this court and the Court of Errors and Appeals so as to render void every transaction which if performed upon a week day would be perfectly valid and enforceable in a court of justice. Reeves v. Butcher, 31 N. J. Law, 225. Under its provisions, sales and contracts in general, executed on that day, are void ab initio and are incapable of ratification. Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818; Gennert v. Wuestner, 53 N. J. Eq. 302, 31 Atl. 609. In the early case of Crocket v. Vanderveer, 3 N. J. Law, 424, Mr. Justice Pennington, speaking for this court, said: "Our statute for suppressing vice and immorality enacts that no person shall cry, show forth, or expose for sale any merchandise, goods, chattels, etc., on Sunday, or It is to prevent the sell or barter the same.

public exposure of goods and merchandise, for sale on Sunday and selling them in consequence thereof." That this has been the settled public policy of the state is thus emphasized by a legislative enactment which from the day of its enactment (Pat. Laws, 329) has never been repealed or amended, in its general tenor, and for over a century has remained undisturbed as the positive law of the state.

[1] The delegation of power by the Legislature to the city, contained in the municipal charter, and intended to prevent vice and immorality, is a legislative delegation of the police power to be locally exercised; and Paul v. Gloucester, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86, is authority for the proposition that the Legislature in this respect is omnipotent to grant these powers to political divisions of the state now exising or to be created by it.

MINTURN, J. The writ of certiorari in this case is designed to review the legality of an ordinance passed by the board of aldermen of the city of Paterson, entitled "An ordinance preventing vice and immorality, to preserve the public peace and good order, and for other purposes." The ordinance is intended to prohibit the sale upon Sunday, in any store, shop, or other place within the city of any clothing, shoes leather and findings, hats or hardware, under penalties expressed therein. The charter of the city (P. L. 1871, p. 808) provides that, the board of aldermen shall have power to make, continue, modify, and repeal ordinances, regulations, and restrictions to carry into effect any and all of the powers vested by law in the corporation, "and may enforce obedience to the same by fines not exceeding fifty dollars, or by imprisonment, or both; and shall have power by ordinance, resolutions, rules, regulations and bylaws, to prevent vice and immorality, to preserve the public peace and good order," etc., in addition to "other powers elsewhere specially granted." "An act for suppressing vice and immorality" (4 Comp. St. 1910, p. 5712) prohibits the con- | $2, imposed by the vice and immorality act, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

The fact that the municipal authorities to whom the power was thus delegated have seen proper in their discretion to single out certain occupations, the prosecution of business in which upon Sunday may be particularly objectionable and offensive, does not operate as an unreasonable or illegal discrimination against those engaged in such occupations. The imposition of a fine of

may not have operated in the judgment of the municipal board as a sufficient deterrent in the locality to prevent the violation of the law; and the passage of the ordinance may have been deemed necessary with its larger pecuniary penalty, combined with the physical deterrent of imprisonment, to effectuate a compliance with the law.

In Howe v. Plainfield, 37 N. J. Law, 145, it was held that the same act may constitute an offense both against the state and the municipal corporation, and both may punish without violating any constitutional principle. The same general doctrine is discussed and elucidated in 28 Cyc. 697.

[2] The alleged discrimination sought to

be established in this case between the occupations prohibited upon Sunday and those not specially prohibited by the terms of the ordinance is more fanciful than real, since those prohibited by ordinance are but a few of the many prohibited generally by the statute; and since those specially prohibited by ordinance from exercising their calling upon Sunday are also forbidden by the general law of the state from performing the same act, upon that day it must be assumed that they will obey the clear mandate of the law and not violate it, and hence they possess no privilege, right, or immunity which under our constitutional guaranty can be abrogated or infringed by the enforcement of a local law whose sole and only distinctive characteristic is the imposition of penalties not contained in the general act. That such an exercise of power by a municipality is not unreasonable and in no wise contravenes the constitutional rights guaranteed to the citizen is amply illustrated by the adjudications in those jurisdictions in which the question has received judicial consideration. Thresen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234; State, Hoffman, v. Justus, 91 Minn. 447, 98 N. W. 325, 64 L. R. A. 510, 103 Am. St. Rep. 521, 1 Ann. Cas. 91; People v. Havrer, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707; Freund on Police Power, 735.

finding that he was killed (under the circumstances narrated in the following opinion) through the negligence of W., an employé, who was exercising superintendence, and whose principal duty was that of superintendence of the employer's work of running coal cars to a coal dump, in sending down a loaded car so empty car from which the deceased was stepthat it collided with great violence with an ping (who was himself in the exercise of reasonable care at the time), and threw him down under the car wheels; and it was held that the ent within the meaning of the subdivision in finding of the jury that W. was a superintendquestion, and that his negligence was imputable to the defendant, was proper.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. 279.*]

2. MASTER AND SERVANT (§ 182*)-INJURIES

TO SERVANT-STATUTORY PROVISIONS-CON

STRUCTION.

The act of 1909 (P. L. 1909, p. 114) is remedial of the common law and should be libliability of the employers of labor for injuries erally construed. It enlarges the range of the happening to an employé through the negligence of the former, and grants rights of action to an employé against his employer for er to represent him, and which could not arise the negligence of persons having limited powunder, and are beyond the reach of, the common law.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 371, 372; Dec. Dig. § 182.*]

Error to Supreme Court.

Action by the administratrix of John Beagle against the Lehigh & Wilkes-Barre Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

George Holmes (George H. Large, of counsel), for plaintiff in error. Wm. C. Gebhardt, for defendant in error.

VREDENBURGH, J. This suit was brought by the legal representative of John Beagle, deceased, to recover from the coal company the pecuniary loss sustained by his next of kin consequent upon his death from injuries received while working in the company's employ, upon its premises at Hampton, N. J.

[1] The evidence at the trial below justified the jury in finding the material facts to be as follows: The intestate had been en

The ordinance under review will be af- gaged with other employés, in March, 1910,

firmed.

unloading coal from one of the company's coal cars that had been run down over its railroad tracks and placed upon its coal dumps, or pocket, for the purpose of being emptied therein. The men had just finished unloading the car, and had started to leave it for the purpose of emptying another car of coal which was ready to take its place upon the dump, when the accident happened. The loaded car stood upon the track a short distance away, and when the brakes upon it were released by the men, it came downgrade by gravity to the dump. Its movement and running was under the immediate orders of the defendant's employé named Whitehead, who gave signals to the