We think there was error in this construction of the contract in question. Our view is that the provision first named applied to this contract, and that the other provisions apply to subcontractors only, declaring their obligation to the contractor and to the owner. And by fair intendment we think the phrase in the subcontractor notice, "should the owners desire any additional work executed," imports that the desire of the owners in this case should be evidenced by a resolution of council as provided in the main portion of the contract.

But the plaintiff contends also that the verdict should be sustained on the ground of ratification; that, as the evidence shows that the city council by paying the bill of the architect for his 5 per cent. commission, the cost of the work which included the item of extras, this amounts to a ratification of the extra work, or at least was evidence from which a jury could infer ratification. Without expressing any opinion upon the merits of this question, it is proper to say that it is not now before us for the reason that the trial judge expressly charged the jury to the contrary of this contention, and we cannot sustain the verdict on a legal theory directly opposed to the judge's instructions, for that would deprive the city of its right of review.

The result is that the rule to show cause must be made absolute, unless the plaintiff will consent to remit $307.80 from the amount of the verdict. If the plaintiff will so remit, the rule will be discharged. In any event the city is entitled to costs upon this rule.

Under P. L. 1906, p. 269, providing that a purchaser of real estate at foreclosure sale, etc., shall be relieved from his bid if before delivery of the deed he satisfy the court of the existence of any substantial defect in or cloud on the title which would render the title unmarketable, or of the existence of any lien or incumbrance thereon, unless a reasonable description of the estate or interest to be sold and of the defects in the title and liens or incumbrances thereon, with the approximate amount thereof, be inserted in the notices and advertisements of sale and in the conditions of sale, expenses incurred in procuring searches showing the state of a title since the date of a mortgage were necessary for the proper foreclosure thereof, and taxable under rule 113a in favor of the party foreclosing the mortgage, though expenses incurred in searching the title anterior to the date of the mortgage were not taxable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1662.]

Bill by Roland D. Armstrong against Agnes Fisher and others. Heard on bill, answer, replication, and proofs. Decree for defendants in part.

Condict, Condict & Boardman, for complainant. Tennant & Haight, for defendant.

GARRISON, V. C. It is not necessary to advert to the issues raised and decided in this suit. The only question to be determined is one of costs. The suit is one to foreclose a mortgage held by the complainant, and the solicitor of the complainant caused, not only the customary searches to be made from the date of the mortgage, but also searched the title anterior to the date of the mortgage for the purpose of disclosing any defects in or liens or incumbrances thereon. His purpose in doing this was so that he could insert in the notice of sale and in the conditions thereof a reasonable description of the defects in the title and the liens or incumbrances thereon, so that the purchaser at the sale could not be relieved of his bid on account of the existence of such defects, liens, or incumbrances. The insertion in the notice of sale, and in the conditions thereof, of the existence of the defects in the title and of the liens and incumbrances thereon has the effect of preventing the purchaser from obtaining relief from his bid by force of the statute (P. L. 1906, p. 269).

The solicitor of the complainant requested me to certify, in pursuance of rule 113a, that in my opinion the certificates of search presented by him were necessary for the proper foreclosure of his mortgage, upon which certificate he could obtain the taxation of the same in his costs. I will certify that the expense incurred in procuring searches showing the state of the title since the date of the mortgage were necessary for the proper foreclosure thereof, and, therefore, under rule 113a and the statute (P. L. 1902, p. 540) are properly taxable in favor of the complainant. I cannot certify that the expenses incurred for searching the title anterior to the date of the mortgage are taxable.

The complainant contends that these search fees should be included, because they were rendered necessary by the statute above referred to (P. L. 1906, p. 269). I do not concur in this view. In my view, that statute does not cast any duty upon the complainant, or upon any of the parties in the suit, but does extend to each of them a privilege. Before the enactment of this suit a purchaser at a judicial sale in New Jersey took such title as the proceedings showed, and could not claim to be relieved because of the existence of prior incumbrances or of defects in the title. The effect of this statute is to prevent the bidder or purchaser from being relieved, if the defects in the title and the liens and incumbrances thereon are brought to his notice before the sale.

In my view, therefore, any one who desires to bring these things to the notice of the intending purchasers may do so, but it is not the duty of any one to do so. A mortgage may be foreclosed, and the equity of redemption disposed of, and the title which a sale under the mortgage is capable of conveying be conveyed, without necessarily searching back of the date of the mortgage. If it be to

the interest of the complainant to have the sale under such conditions that the purchaser cannot be relieved of his bid because of defects, etc., then the complainant may serve his own interest by searching for defects, liens, and incumbrances, and may cause notice of the same to be given. In like manner, in my view, any of the other parties may avail themselves of the privilege extended by this statute.

I conclude, therefore, that costs for such searching may not be taxed in favor of any party without legislative sanction; and I do not find any present legislation sanctioning the same.

(75 N. J. L. 75)

SHAFER v. LEHIGH VALLEY R. CO. OF NEW JERSEY.

(Supreme Court of New Jersey. June 17, 1907.) RAILROADS ACCIDENT AT CROSSING - OPEN GATES.

While open gates are an invitation to cross, they do not excuse a traveler approaching a railway crossing from looking or listening, or both, where either would be effective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 1072.]

(Syllabus by the Court.)

Action by Oscar W. Shafer against the Lehigh Valley Railroad Company. Verdict for plaintiff. Rule to show cause discharged, unless plaintiff remits portion of damages recovered.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

H. B. Herr and Smith & Gray, for the rule. William C. Gebhard, opposed.

FORT, J. In this case but two questions are argued on the brief as grounds for a new trial; the first being the refusal of the court to nonsuit. We think that this refusal was right.

At the point where the plaintiff was injured there were seven tracks at grade. On either side of the roadway there were gates. Those gates were operated by a man in the tower. The plaintiff was a baker, and on the morning in question was crossing the tracks in his baker wagon, and as he approached the tracks the gates were up. Three of the tracks at the side of the railway from which the plaintiff approached were sidings. The two tracks on the opposite side of the roadway were the main tracks. Upon the sidings there were standing cars to obstruct the view of the plaintiff from the direction from which the train that hit him came. The train was going rapidly, concededly at the rate of 35 to 40 miles an hour, probably faster. There were also distracting dangers at the crossing at the time the plaintiff was going over, consisting of a drill engine switching or handling cars but a short distance away and which the plaintiff was observing. Open gates are an invitation to

cross. Although they do not excuse a failure on the part of the traveler either to look or listen, yet open gates under such circumstances are clearly evidence of the neg ligence of the agents of the defendant company, and, whether the plaintiff exercised reasonable care and prudence, or that care and prudence which was required of him under the circumstances surrounding him, was a question for the jury. So, in any view, the court rightly refused to nonsuit.

The other ground urged for a new trial is the suggestion that the damages were excessive. The verdict was for $18,000. We think the damages were excessive. The plaintiff was seriously injured undoubtedly, but whether the serious character of the injury, which still exists, is to obtain for all the life of the plaintiff, is not clear. The earning capacity of the plaintiff was much more than capitalized by the verdict.

This disposition will be made of this case: The rule to show cause will be discharged. unless the plaintiff will consent to remit all damages recovered in excess of $10,000, and, upon the further condition that, if the plaintiff does not consent to thus remit and to this reduction, the defendant may have a new trial upon the condition that it concede liability in the case and consent to go to trial upon the question of the quantum of damages only.

(75 N. J. L. 172)

STONE v. NEW JERSEY & H. R. RY. & FERRY CO.

(Supreme Court of New Jersey. June 10, 1907.)

INSURANCE-MUTUAL ASSESSMENT COMPANYINSOLVENCY-SET-OFF OF MEMBER.

A member of an insolvent mutual assessment insurance company cannot set off a debt due him for a loss under a policy against assessments due from him to the company to pay losses, even though the company is a foreign corporation, and the suit to recover the assessments is brought by a foreign receiver.

(Syllabus by the Court.)

Action by Theodore W. Stone, receiver, against the New Jersey & Hudson River Railway & Ferry Company. Motion to strike out notice of set-off granted.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ. Linton Satterthwait, for the motion. mund W. Wakelee and Wendell J. Wright, opposed.

Ed

SWAYZE, J. The plaintiff is a receiver of a mutual assessment insurance company of Pennsylvania, appointed by a court of that state. The action is brought to recover assessments upon a policy of insurance. The defendant seeks to set off a sum due to it for losses covered by the policy. The question raised by the motion is whether there is a right of set-off.

The right of set-off as against the receiver of an insolvent corporation does not rest upon the statute of set-off, but upon the provision of the corporation act authorizing the receiver to settle debts due the company upon such terms as he shall deem just and beneficial to the corporation, and in case of mutual dealings to allow just set-offs. Receiver v. Paterson Gaslight Co., 23 N. J. Law, 283.

Whether the allowance of such a set-off as is here claimed is just or not depends upon the contractual relations between the insolvent company and the defendant. The contract is found in the defendant's applications and in the policies issued thereon, all of which are in the same terms. By the applications the defendant applies for member. ship and insurance. By the policies, it is entitled to share in dividends declared by the directors of the insolvent association, and, in case the fixed premium rate charged by the association is insufficient to pay losses, becomes liable to pay a pro rata additional sum to make up the deficiency, not exceeding 5 per centum of its gross traffic receipts.

Under such a contract the relation of the defendant to the association is twofold: It is assured thereby, and hence a possible creditor; it is a member of the association, and hence a quasi partner in the enterprise. The present suit is to enforce the liability of the defendant in the character of member. The set-off is a claim in its character of creditor. The injustice of allowing one member of a mutual insurance company upon the assessment plan to escape liability to contribute to the common fund, and thereby obtain an advantage over his fellow members, all of whom embarked in the same enterprise presumably on equal terms, and of allowing one creditor of an insolvent company to be preferred over other creditors merely by reason of his liability to contribute toward the payment of the losses of all, is manifest. The authorities seem quite unanimous against allowing a set-off in such a case. One of the early cases is Hillier v. Alleghany Mutual Insurance Co., 3 Pa. 470, 45 Am. Dec. 656. This was followed in Lawrence v. Nelson, 21 N. Y. 158. Although the precise question has never been decided in this state, a somewhat similar question was presented to Chancellor Runyon (Vanatta v. New Jersey Mutual Life Insurance Co., 31 N. J. Eq. 15, 23) with the same result. The New York and Pennsylvania cases above cited have been relied on as authority by the Court of Errors and Appeals. Hannon v. Williams, 34 N. J. Eq. 255, 38 Am. Rep. 378. This was a case where a depositor in a savings bank was refused a set-off of her de posit against her indebtedness. Although her indebtedness to the bank was upon bond and mortgage, this fact was not relied on. The set-off was refused upon the ground that the depositors in a savings bank had a com

66 A.-68

mon interest in a common fund to which all looked for profit or for indemnity. The case of a mutual assessment insurance company presents an even stronger case against the allowance of a set-off, for the reason that the members are under a contract liability to contribute to the payment of losses, and, unlike depositors in a savings bank, cannot escape with the loss of what they have already paid. Their position is quite like that of stockholders of a corporation whose stock is not fully paid. As to stockholders, it is well settled that there is no right of set-off in such cases. Ex parte Grissell, L. R. 1 Ch. 528, 35 L. J. Eq. 752; Sawyer v. Hoag, 17 Wall. (U. S.) 610, 21 L. Ed. 731; Williams v. Traphagen, 38 N. J. Eq. 57.

It is urged, however, that the present plaintiff is a foreign receiver, and the de fendant a New Jersey corporation. We are unable to see why these facts should be allowed to give the New Jersey creditor an advantage over other creditors. We do not allow a foreign receiver to exercise his powers in our jurisdiction to the disadvantage of creditors resident here; but, subject to this restraint, comity requires that he should be acknowledged and aided. Hurd v. Elizabeth, 41 N. J. Law, 1. Where it is necessary our courts will appoint an ancillary receiver, but the assets will be so administered that creditors in this state and in the foreign jurisdiction shall fare alike. Irwin v. Granite State Provident Association, 56 N. J. Eq. 244, 38 Atl. 680. Such equality of treatment cannot be secured in this case if the set-off is allowed.

The motion to strike out is granted, with costs.

Where a county building committee has been appointed by the chosen freeholders of any county, pursuant to the act of 1901, as amended by the act of 1902 (P. L. 1901, p. 79; P. L. 1902, p. 42), and such committee has incurred obligations for lands or building construction, it is lawful for the chosen freeholders to raise the necessary funds to cover such expense by the issuance of bonds as provided by statute, and in default a mandamus will issue so directing."

2. SAME ERECTION OF COUNTY JAIL.

Under the act of 1901, the building committee, when appointed, have the authority to erect a county jail.

3. SAME-CHANGE OF BUILDING SITE.

The provisions of the act of 1903 (P. L. 1903, p. 47) do not apply to a change of site for the location of county buildings at the county seat, but only to a change of the county, town, or seat itself.

(Syllabus by the Court.)

Application on the relation of Walter Christie and others to the board of chosen

freeholders of the county of Bergen and others. On rule to show cause. Peremptory writ ordered.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

Wendell J. Wright and Edmund W. Wakelee, for relators. Luther A. Campbell and Peter W. Stagg, for respondents.

FORT, J. This is an application for a mandamus to compel the issuance by the respondents of county bonds to meet the cost of the purchase of lands and the erection of public buildings for the county of Bergen. The freeholders of that county heretofore appointed a committee for the purpose of erecting public buildings in such county, under the act of 1901, as amended by the act of 1902 (P. L. 1901, p. 79; P. L. 1902, p. 42). These proceedings were questioned and affirmed in this court and in the Court of Errors and Appeals. Gulnac v. Freeholders (N. J. Err. & App.) 64 Atl. 998. The constitutionality of this act was sustained by the Court of Appeals. Dickinson v. Hudson Co. Freeholders, 71 N. J. Law, 589, 60 Atl. 220. The building commission appointed pursuant to statute have entered upon the discharge of their duties, and have incurred expenses in securing the site and employing experts and for the services of a consulting engineer, and the like, amounting to several hundred dollars, and they have also made requisition upon the board of freeholders for funds for the purchase of a site which they have selected for the erection of the county buildings within the town of Hackensack, which is the county seat. The board of freeholders, by a vote of 6 to 18, have refused to issue bonds in accordance with the statute, to provide the necessary funds to meet the requirements of the appointed building committee. This proceeding is to test the right of the county commission to require the freeholders to issue the bonds and to provide the necessary funds.

No technical points are made by counsel, but the broad claim is made by the respondents that the matter of furnishing the funds requisite for the county building which the county building commission proposes to construct is discretionary with the board of freeholders, and that, if they refuse to furnish the funds, no buildings can be erected. We think otherwise. After the statutory proceedings have been taken for the selection of the county commission, and the commission has been appointed, the power of the chosen freeholders under the statute is ended, and all duties then devolve upon the county commission. They are given power to acquire by purchase or condemnation lands suitable for the erection of the necessary buildings, to be used for the courts and county officers, and for the transaction of the public business of the county and to furnish the same ready for occupancy and use by such courts and public officers. Title is to

It is argued that the words "it shall be lawful," in the fourth section of the act, are words of discretion, and not mandatory upon the board of freeholders as to the issuance of bonds. This view does not commend itself to our judgment when the history of the statute is considered. The act provides for a scheme for the erection of county buildings, and authorizes the commission, when appointed pursuant to the statute, to do the things in relation thereto above enumerated. To meet these obligations, in order to justify the board of freeholders in doing it, the statute provides that "it shall be lawful" for the board to issue and sell bonds. Of course, but for this there would be no power in the board of freeholders to issue the bonds. The statute gives the unquestioned power to the county commissioners to incur obligations in the name of the county of the character mentioned above. To meet these, it is the duty of the freeholders to provide the funds, and the statute points out the method in which it shall be lawful for them to do so. There is no discretion in the board of freeholders with respect to this matter. The duty is cast upon them to provide the funds to meet the engagements which the statute authorizes the commission to incur. Any other construction of this act would lead to this anomaly: That the county commission could incur expenses which there would be no way to pay, unless the duty upon the board of freeholders to meet the obligations thus incurred was a mandatory one.

Another point was made. It is conceded that the money in this case is desired to purchase land in the town of Hackensack, which is the county seat of Bergen county, at a different location, in that town, from that upon which the present county buildings are situated. The record shows the reason for the taking of this course by the commission in a full and satisfactory report found there

in. The contention is that this is a change of location of the county buildings within the provisions of the act of 1903 authorizing the change of the location of the county buildings for the use of the courts and public officers of the county, and acquiring lands, etc. (P. L. 1903, p. 47), and that this change of location must be voted upon by the people in order to justify the expenditure therefor. We do not so construe the act of 1903. We think that act is limited in its operation and effect to the selection of a new location for county buildings, and by that is meant a change of the county seat from one town to another in the county, and that it does not relate to the purchase of a different piece of land within the territory of the municipality which is now designated by law as the county seat of any county in this state.

It is also suggested that the act of 1901, as amended by the act of 1902, does not cover the erection of a county jail, as it is suggested the relators intend to do in this case. We think that it does cover any county buildings to be used for county purposes, and a jail is within this description.

It is stipulated in this case that the assessed valuation of the property of Bergen county for the year 1906 was $60,600,000, and that the $50,000 asked for by the county building committee, and refused by the board of freeholders, is for the purpose of paying preliminary expenses and acquiring land upon which to erect two separate buildings, one for a county courthouse and public offices, and the other for a jail, and that the amount thus required is within the amount legally authorized by statute to be appropriated for that purpose.

In this case, in view of the agreement of counsel at the hearing that all the facts are before us that could be shown, if there were an alternative writ issued in the first instance, and that, if the court thought a writ should go, that a peremptory writ of mandamus should be issued, an order will be made that a peremptory writ of mandamus issue to the board of freeholders, directing them to issue bonds pursuant to statute.

(75 N. J. L. 70)

p. 17), is not special legislation as to cities, and hence is not in conflict with out state Constitution.

(Syllabus by the Court.)

Certiorari by John G. Wendel against the board of education of the city of Hoboken to review an order appointing condemnation commissioners. Affirmed.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

Collins & Corbin, for prosecutor. James F. Minturn, for defendant.

FORT, J. This writ brings up an order of a justice of the Supreme Court appointing commissioners to condemn land for a public school building in the city of Hoboken. The order of the justice is challenged upon the ground that there is no power in the school board of that city to condemn lands for the reason that the powers to condemn given to school boards by the general school law of October 19, 1903, does not extend to the school board of the city of Hoboken, nor to any school board not created in accordance with sections 38 or 39 of the general school act of 1903 (P. L. 1903, p. 17).

We take a different view of the law applicable to this case. By section 45 of the general school act of 1903 the board of education in any city school district is declared to be a body corporate by the name of the board of education of the city in which it is, and is authorized to have an official seal. By section 47 of that act said board is authorized in and by its corporate name * * to take and condemn land and other property for school purposes in the manner provided by law regulating the ascertainment and payment of compensation for property condemned or taken for public use. This confers upon such a board the power to take proceedings for condemnation provided by the general condemnation act (P. L. 1900, p. 79). By section 246 of the general school law all provisions of this act and all acts and parts of acts, general, special, and local, so far as they are inconsistent with the provisions of this act, are hereby repealed. By section 40 of the school act of 1903 it is provided as follows: "In any city school

CITY OF HOBOKEN.

(Supreme Court of New Jersey. June 17, 1907.) 1. EMINENT DOMAIN-DELEGATION OF POWER -SCHOOLS AND SCHOOL DISTRICTS - BOARD OF EDUCATION-POWERS.

The members of the board of education of the city of Hoboken as in office at the time of the approval of the general school act of 1903 (P. L. 1903, p. 5) became a body corporate under that act, and were given the power, conferred by that act, to condemn lands for public school purposes. Their successors, elected as they were, prior to the adoption by the people of either the provisions of section 38 or 39 of that act, have the like powers. 2. STATUTES-SPECIAL LEGISLATION.

The conference of such powers upon existing boards of education, in cities not adopting either section 38 or 39 of said act (P. L. 1903,

education in such school district, as provided in sections 38 or 39 of this act, the administration and conduct of the public school, and the management and control of the public school property therein, shall remain in and shall be exercised by any board of education or other body heretofore having control of the public schools therein. Said board of education or other body shall be hereafter deemed to be incorporated under the provisions of section 45 of this act, and shall have all powers and be charged with all the duties conferred or imposed upon the board of education as provided in this article." The section goes on to provide that members of any board of education or other