(107 A.)

fore must be strictly pursued. Corbit v. Cor- tion for a special execution to be issued unbit, 50 N. J. Law, 363, 13 Atl. 178.

Other delinquencies in procedure anterior and subsequent to the issuance of the writ are manifest in the record, but those mentioned are obviously sufficient to render any profitable discussion of the others unneces-ly unsatisfied and where any wages, debts, earnsary.

(Court of Errors and Appeals of New Jersey. execution issue against the wages, debts, earn

"That an execution issue out of this court after to become due on the Romm Hotel, Atagainst the debts and rent now due or herelantic City, N. J., to the judgment debtor, Mildred J. Brown, by the tenant, David Romm, to the full amount thereof, until the amount of said judgment with the costs to be taxed are

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NAGE

paid, and also against the rents, if any, due by Charles R. Meyers and George W. Mueller CAVANAGH et al. v. HOBOKEN LAND & (Mrs. Brown's agents in the collection of the IMPROVEMENT CO. rent), to the full amount thereof, until the amount of said judgment, with costs to be taxed, | (Court of Errors and Appeals of New Jersey. are paid."

Upon application to set aside this order thereafter made to the Supreme Court by the attorney of Mrs. Brown, upon due notice, that tribunal reached the conclusion that the order under review should be vacated, first, because the affidavit of plaintiff's attorney was not legal proof of the facts upon which the application for the special execution was based; and, further, because rents issuing out of real estate were not such debts or profits as were within the purview of the act of 1916.

We do not find it necessary to consider these matters so interestingly discussed by the Supreme Court in its opinion in the cause, for the reason that, even if we had reached a conclusion upon them contrary to the views of that court, we should, neverthe

less, feel compelled to affirm its judicial action. The statute is in derogation of the common-law rights of the debtor. It takes from him, without notice and without a hearing, property which, except for the statute, is exempt from execution. It is therefore necessary for the creditor and the court, in attempting to enforce the right given by the statute, to follow its provisions strictly. A reading of its provisions makes it plain that the legislative purpose was not only to subject the wages, debts, earnings, etc., of the judgment debtor to the lien of the special execution, but to provide for the payment to the sheriff at specified times of a certain percentage of such wages, debts, earnings, etc., until the execution is satisfied; the installments thus payable not to exceed 10 per cent. in amount, unless the income of the debtor should exceed the sum of $1,000 per annum, in which case a larger percentage is to be paid, provided the court or judge shall so direct. The order under review entirely disregards this important right of the judgment debtor to retain for his own use and benefit all of the wages, earnings, salary, etc., which shall come to him from time to time, except a percentage thereof to be fixed by the court or judge, and paid from time to time upon the execution. On the contrary, the order, as we construe it requires the tenant Romm, to pay to the sheriff the full amount of the rents accrued and accruing to Mrs. Brown until the judgment against her is satisfied; and the same is true with relation to the rents collected or to be collected by her agents.

For the reason which we have expressed, the judgment of the Supreme Court will be affirmed.

June 20, 1919.)

GUMMERE, C. J. This is an appeal from a judgment in favor of Mrs. Cavanagh and her husband in an action brought to recover compensation for injuries received by the wife from a fall upon the pavement in front of the defendant company's property, caused by slipping upon ice which had formed there. The theory upon which the plaintiffs' case was rested, and upon which it was left to the jury, was that the presence of the ice upon the pavement was due to the wrongful act of the defendant, and that consequently it was responsible for injuries received by Mrs. Cavanagh, which were the direct result of that wrongful act.

The proofs showed that the roof upon the defendant's building was constructed with a gutter which gathered together the rain water, or the water resulting from melting snow, which had fallen thereon, and discharged it through a pipe or leader, which ran down the front of the building and into a drain which had been laid below the surface of the street; that this pipe or leader had been permitted by defendant to become broken and out of repair, so that the water thus collected, instead of passing down through it, ran down the outside thereof in large quantities and spread upon the sidewalk; and that the ice upon which Mrs. Cavanagh slipped was formed by the freez

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(107 A.)

ing of the water which escaped from the leader by reason of its impaired condition.

In the case of Jessup v. Bamford Bros. Co., 66 N. J. Law, 641, 51 Atl. 147, 58 L. R. A. 329, 88 Am. St. Rep. 502, which was a case somewhat similar to that now before us (the plaintiff having fallen upon ice which had formed upon the sidewalk in front of the defendant's premises from surface water cast thereon by the defendant), the trial judge instructed the jury that no person had a right to gather together the surface water on his own property, and throw it upon the sidewalk in a stream, thereby rendering the street more dangerous, or less convenient, than it otherwise would be for public travel; and that if he did so he was responsible for injuries caused thereby. This court held the instruction erroneous, for the reason that the concentration of the flow of water and its altered transmission to and upon a public highway was a necessary incident to the legitimate beneficial user of its property by the defendant, and that consequently any injury arising therefrom was not actionable. If the defendant in the present case had not constructed a leader for the purpose of carrying off the water which had accumulated on the roof of its building, but had merely made an opening in the gutter for the purpose of permitting the water which had gathered therein to fall upon the street, the doctrine of the cited case would be applicable.

manner in which the flagman performed the duty imposed upon him by his employer Wolcott was injured while passing over the crossing in front of a moving train. The court held that having voluntarily assumed to protect the crossing it was answerable for injuries to Wolcott which resulted solely from the flagman's negligence. But it cannot be doubted, we think, that if the railroad company prior to the accident had abandoned its purpose of protecting the crossing, either permanently or for an indefinite time, and had withdrawn its flagman, and caused actual notice of its action to be given to Wolcott, no recovery could have been had by the latter upon the theory that the company at the time of the accident owed him the duty of protecting the crossing by the presence of a flagman there and had unlawfully failed to perform that duty.

The present case is similar in its essence to that suggested. The defendant had permitted the leader to become broken so that it no longer served the purpose for which it had been installed, and, although it had notice of this condition, it made no attempt to repair. Its failure to restore the leader was an abandonment, pro tempore at least, of its purpose to protect travelers along the sidewalk against dangers resulting from the formation of ice caused by the freezing of water discharged from the roof. Mrs. Cavanagh had personal knowledge of this situation, for she testified that on the evening before the accident, while walking past the

But it is argued that, conceding the defendant was under no legal obligation to construct the leader for the purpose of carry-defendant's premises upon the same sidewalk ing the water into the drain, yet, having assumed to do this he was bound to use reasonable care to maintain the leader in such a condition that it would perform the function for which it was intended; this being the doctrine, as it is said, laid down by the Supreme Court in Wolcott v. N. Y. & L. B. R. R. Co., 68 N. J. Law, 421, 53 Atl. 297, and approved by this court in Brown v. Erie R. R. Co., 87 N. J. Law, 494, 91 Atl. 1023, Ann. Cas. 1917C, 496.

where she afterwards fell, she observed the water escaping out of the broken pipe and running down to and spreading over the sidewalk to such an extent that the street was all ice. The defendant having abandoned its purpose, at least temporarily, of taking care of the flow of water by conducting it through the leader into the drain, and Mrs. Cavanagh having knowledge of such abandonment, she is not entitled to recover against the defendant upon the theory that, having once assumed to protect travelers using the sidewalk against danger from accumulating ice, it was under a legal obligation to her to continue that protection.

We think that for the reasons indicated the defendant company was entitled to the direction of a verdict in its favor, and that the refusal of the trial court to do so on the application of defendant's counsel was legal

The doctrine of these cases, however, is not so broad as it seems to have been considered. A person who assumes to protect others against injury which may result to them from the exercise by him of a legal right in a legal manner is under no obligation to continue that protection indefinitely. He may abandon his purpose at his own will, and, having done so, is under no obligation to afford further protection to third persons who have knowledge or notice of such abandonment. For instance, in the Wolcott Case the railroad company had stationed a flagman at a point where its road crossed a public highway, although it was under no legal obligation to do so, and by reason of the negligent | dissenting.

error.

The judgment under review will be reversed.

SWAYZE, BERGEN, and WILLIAMS, JJ.,

TRENTON & MERCER COUNTY TRAC-
TION CORPORATION et al. v. INHABIT-
ANTS OF EWING TP. et al. (No. 5.)
(Court of Errors and Appeals of New Jersey.
June 20, 1919.)

1. STREET RAILROADS 24(1)—LOCATION OF
TURNOUT-ASSENT OF BOARD OF FREEHOLD

ERS.

Where a street railway company, having obtained permission to construct, maintain, and operate a street railway on a township road by ordinances of the, township committee and board of freeholders constructed one of its turnouts at a point other than that designated on the map, held that assent merely by individual committeemen and freeholders, given while the building of the road was in progress, was not an assent of the township committee and board of freeholders; 4 Comp. St. 1910, p. 5577, pl. 14, requiring the clerk to keep a record of the committee's proceedings. 2. STREET RAILROADS

TURNOUT-ESTOPPEL.

22(3)—REMOVAL OF

As 4 Comp. St. 1910, p. 5040, declares that a municipality in granting consent may act only by ordinance and not otherwise, held that, where a street railroad company, which had obtained permission by ordinances of the township committee and county board of freehold ers to construct, maintain, and operate its road on a township highway, located a turnout at a point other than that specified on the map, the fact that members of the committee and board of freeholders knew of the change, and that no objection was made for 12 years, does not estop the township from compelling removal.

as Green's switch from its location in a
county road, and the township of Ewing
and the freeholders of Mercer appeal. The
rights of the street railway company rest
on an ordinance of the township of Novem-
ber 1, 1902, consenting to the construction
of the railway and fixing the location of
tracks and switches accompanied the ordi-
the tracks. A map showing the location of
nance. The street railway company execut-
ed an agreement in accordance with the
statute, by which it accepted the ordinance
and all its provisions, and covenanted with
the township that the railway company and
its successors should be bound to observe,
keep, and perform all the conditions, limita-
tions, impositions, matters, and things by the
ordinance directed to be observed, kept, and
performed as a consideration to the enjoy-
ment of the rights, privileges, franchises, and
licenses granted by the ordinance. The agree-
ment added that it was the express intention
to be bound by all the restrictions, limita-
tions and conditions of the ordinance. The
railway was built in 1903; Green's switch was
not located at the point indicated on the
map, but 1,700 feet away. No question
arose until 1915, when the township and
county authorities moved to take up the
switch, and the present bill was filed.
bill sets forth the ordinance and agreement.
but obviously these averments would not
entitle the complainant to relief, since they
failed to aver and could not prove that the
switch was constructed at the point fixed.
The bill charges that the railway was con-

The

3. STREET RAILROADS 28(4)-REMOVAL OF structed by virtue of the ordinance “or other UNAUTHORIZED SWITCH-LACHES.

Public authorities, as a township or a county, are not barred by laches from compelling a street railroad company to remove a turnout constructed in a public highway without authority.

Bergen, Black, White, and Williams, JJ., dissenting.

Appeal from Court of Chancery.

Bill by the Trenton & Mercer County Traction Corporation and the Trenton, Pennington & Hopewell Street Railway Company against the Inhabitants of Township of Ewing and others. From a decree granting a perpetual injunction against them (87 N. J. Eq. 397, 101 Atl. 1037), defendants appeal. Reversed, and record remitted to the end that the bill may be dismissed.

Malcolm G. Buchanan, of Trenton, for appellants.

George W. Macpherson, of Trenton, and Frank Bergen, of Newark, for respondents.

SWAYZE, J. [1] The chancellor enjoined the township committee and the board of freeholders from removing a turnout known

valid authority." What that other valid
authority was appears only in the answer-
In those the claim is made
ing affidavits.
that the township committee and the board
of freeholders assented to the actual loca-
tion of the switch. This assent seems to
have been merely by individual committee-
men and freeholders, perhaps while the
building of the road was in progress, per-
haps at a tour of inspection after comple-
tion. No formal action is even claimed to

have been taken; two of the three com-
mitteemen, all now living, deny any consent
to the change of location on their part or as
far as they know on the part of their
colleague, and the evidence of such consent
is most meager and unsatisfactory. At best,
it is no more than failure to object on the
part of committeemen and freeholders, and
it is not shown that they knew that the ac-
tual location was different from that pre-
scribed by the ordinance. In the absence
of proof, we cannot hold that they are to
be charged with knowledge that a shift of
1,700 feet in the location had been made.
A survey was necessary to reveal the fact.
But even if they had known it, formal ac-

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(107 A.)

tion was necessary and in view of the statutory requirement that the clerk shall keep a record of the committee's proceedings (C. S. 5577, pl. 14), the case is within the rule of West Jersey Traction Co. v. Camden Horse R. R., Co., 53 N. J. Eq. 163, 167, 35 Atl. 49. In the absence of proof of any resolution by the township committee, we must assume there is none, and that is conceded to be the fact.

[2] The complainant relies really upon the failure of the public authorities to object or to act for 12 years. Whether he chooses to use the term "estoppel" or "laches" is of no importance. The elements of an estoppel are not present, since there is no proof that the railway company was induced

The switch was constructed in the public highway without right, and the municipalities were within their rights in abating the nuisance. It is of no importance that both bodies were acting to the same end. 1

The decree must be reversed and the record remitted, to the end that the bill may be dismissed. The defendants are entitled to costs in both courts.

BERGEN, BLACK, WHITE, and WILLIAMS, JJ., dissenting.

MANN v. MAX. (No. 59.)

June 20, 1919.)

(Syllabus by the Court.)

316(2), 323–Use of PROPERTY INJURY FROM SCAFFOLD OVER SIDEWALK-LIABILITY OF ABUTTING OWNER WORK OF INDEPENDENT CONTRACTOR CONTROL.

An owner of land abutting on a public street employed a contractor under written contract to build a building thereon. The contractor employed a subcontractor for the mason work, and the latter in prosecution of his work erected scaffolding projecting over the sidewalk against which plaintiff, passing at night, struck his head and was injured. Held, that no liability of the owner was shown; neither the work nor the scaffold being in itself a nuisance, and both being under control of a contractor exercising an independent employment.

to place the switch where it did by any- (Court of Errors and Appeals of New Jersey. thing said or done, even by individual members of the committee, although that would not raise an estoppel against the public. The municipality in granting the consent originally could act only by ordinance, "and MASTER AND SERVANT not otherwise," as the statute is careful to say. C. S. 5040. This clearly forbids action by way of estoppel, which, if permitted, would nullify the statutory prohibition. It is, moreover, conclusive against the company that it did in fact act under an ordinance which fixed the location of the switch at a different point from the actual location. The company did not waive its right to maintain the legal switch. It contracted in solemn form to comply with the ordinance. If it has a right to maintain the present switch, it has a right to maintain four switches instead of three, as the ordinance says. Clearly no such claim is admissible, and the result necessarily follows that the switch now in question is illegal. The estoppel claimed by the company applies to an original location of track, and this is required by the statute to be by ordinance, "and not otherwise." A subsequent change of location might be authorized by resolution, and there is no exclusion of other methods by express language: but if we assume that a subsequent change might be legalized by way of estoppel, that will not avail the street railway company, which does not claim that there was any such subsequent change of location as might be authorized by resolution.

[3] There remains only the suggestion that the public authorities are barred by laches. The law is settled to the contrary. Cross v. Morristown, 18 N. J. Eq. 305; Hoboken Land & Improvement Co. v. Mayor, etc., of Hoboken, 36 N. J. Law, 540; Price v. Plainfield, 40 N. J. Law, 608; Laing v. United New Jersey R. R., etc., Co., 54 N. J. Law, 576, 578, 25 Atl. 409, 33 Am. St. Rep. 682; Jersey City v. Hall, 79 N. J. Law, 559, 76 Atl. 1058, Ann. Cas. 1912A, 695.

Appeal from Circuit Court, Hudson County.

Action by Edward J. Mann against one Balene, who impleaded Harry J. Max. Directed verdict for defendant Balene, and verdict for plaintiff against defendant Max, and he appeals. Reversed.

Runyon & Autenrieth, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

PARKER, J. The plaintiff, walking along the sidewalk of a public street in Jersey City at night, struck his head against a beam of a scaffold used in the erection of a new building on land of the appellant, and sus tained personal injuries for which he recovered a judgment against appellant, which is the subject of this appeal. At the trial it appeared without dispute that appellant had made a general contract with one Balene for the erection of the building, that Balene had by further contract sublet the mason work thereon to one Giordano, and that the scaffold was put up by Giordano's employés in the prosecution of the work under the sub

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 107 A.-27