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recovered, for either agreement would have the same effect, as the plaintiffs' claim is for the full amount of the award. The agreement was not alone that the plaintiffs should be paid out of any sum recovered. Such an agreement, as I have above shown, would not have been sufficient to give the plaintiffs any claim upon the award. But there was also proof tending to show that it was the intention to assign to the plaintiffs or to give them a lien upon any sum recovered, and retain out of it their compensation, and to pay the balance, if any, to Heath, and for the purpose of upholding the judgment we may assume that the trial judge found any facts which the evidence tended to establish. The form of words used in making the agreement is not alone to receive attention, but all the circumstances of the transaction are to be considered." This was accompanied by an elaborate examination of the authorities, and resulted in an unanimous decision of the court in favor of the lien in that case. The later New York cases seem to have abandoned the seeming doctrine of the older. Holmes v. Evans, 129 N. Y. 140, 29 N. E. 233, is an example, and also a still later case of Harwood v. La Grange, 137 N. Y. 538, 32 N. E. 1000, decided in 1893. The headnote of that is as follows: "That, when an attorney renders services in an action under an agreement that he shall receive his compensation out of the proceeds thereof, he has an equitable lien upon or ownership as equitable assignee in such proceeds." And the court, in sustaining that principle, refer to Williams v. Ingersoll, supra; Fairbanks v. Sargent, 104 N. Y. 108, 9 N. E. 870, 6 L. R. A. 475, 58 Am. Rep. 490; Boyle v. Boyle, 106 N. Y. 654, 12 N. E. 709; and Chester v. Jumel, 125 N. Y. 237, 26 N. E. 297.

Defendant relies upon the recent case of Weller & Lichenstein v. Jersey City Street Railway Company, 68 N. J. Eq. 659, 61 Atl. 459. In that case the decision against the solicitors went on the grounds, in the first place, that the claim against the railway company was in its nature not capable of being assigned; and that there was in point of fact no actual product of the litigation, and no fund capable of assignment; and that the parties had a right to settle between themselves, which they had done. The suit was not, as here, by the solicitors against their client, but by the solicitors against the defendant, the railway company, in the suit which they had brought for their client. That circumstance and the nature of the action-tort for personal injuries-combine to distinguish it from the present case. The same may be said of several other cases cited by the defendant. For instance, Kusterer v. City of Beaver Dam, 14 N. W. 617, 56 Wis. 471, 43 Am. Rep. 725. That also was an action for personal injuries against the city, where the plaintiff had entered into a contract with his attorneys to conduct the suit upon shares, and after issue was joined the 66 A.-58

city settled with Kusterer and took a release under seal, which they were allowed to plead puis darrein, and at the trial the court dismissed the action against the protest of the attorneys, and the latter appealed. It was held that it was impossible to grant the attorneys relief in the suit. The court made this remark: "Impressed with the equity of the claim on the part of the attorneys for the plaintiff, we have carefully reviewed many decisions with the view, if possible, of protecting them, at least to the extent of the taxable costs; but, as the cause of action was not assignable, and hence remained, prior to judgment, under the absolute control of the plaintiff," the court concluded it was unable to assist them. Another case is Williams v. Miles, 63 Neb. 851, 89 N. W. 455. That was a bill to set aside the probate of a I will which had been instituted by several parties claiming under a supposed later will and as heirs at law. The solicitors had undertaken it under a contract for a share of the estate. After a defeat of the plaintiff in the court below, and also on appeal, three of the plaintiffs moved to dismiss the bill of complaint as against themselves on equitable terms. This was resisted by the solicitors, and it was held that they could not resist it. The court remarked: "Had the action proceeded to judgment on which would attach a lien in favor of plaintiff's attorneys, or were the controversy of such a character as to bring funds, money, or property into the possession of the court or custody of the law on which the plaintiff's attorneys could claim a lien, legal or equitable, for the value of the professional services," etc., the court then asserted it had power to act, but went on to show that it would be impossible to compel the moving plaintiffs to continue the action. The court did not determine as to whether the contract in that case, which seemed to be similar to that in this case, created a lien or not. Another case cited is Cameron v. Boeger (1902) 63 N. E. 690, 200 Ill. 84, 93 Am. St. Rep. 165. The contract in that case was much like the present, and there was an attempt by the solicitor to open a decree of dismissal of the suit which had been entered by consent of the plaintiff in the suit behind the solicitor's back, and the court held it could not be done. The learned judge. however, proceeded to go into the merits, and expressed the opinion that, according to the decisions in Illinois, the solicitor's contract gave him no lien on the fund. One other western case cited by complainant is worthy of notice, viz., Canty v. Latterner, 31 Minn. 239, 17 N. W. 385. That, as here, was an action by an attorney against his client, and the subject of the suit was in court. There a contract had been made by the defendant with the attorneys that they should prosecute an action against a railroad company to recover the amount due from the latter to the former for damages to his land by reason of the railroad company occupying it, and re

ceive for his services a certain sum, if he won the cause, and nothing if he failed to do so; and the contract contained this further clause: "I hereby agree that he [the attorney] shall receive said money from the Minnesota & St. Louis Railroad out of the amount due me from said railroad company for running through my land, to be paid when suit is settled." It was held that that contract amounted to an equitable assignment of the portion of the chose in action referred to entitling the attorney to receive the same specifically, and, the railroad company having paid the money into court, it was held that he had a lien on the fund in court to that extent. A consideration of all the cases cited do not alter the view above expressed, that the intention of the parties hereto, namely, the complainant, Wilson, and Mr. Schauble, was that Wilson was to have one-third of the very proceeds of the action, and that the contract gave him an equitable lien upon those proceeds when they took form, and that this result is in accordance with equity and good conscience.

The defendant sets up against the whole of the complainant's case a charge that the complainant was not, in all that he did, in reality working for Schauble's interest, but that he was really working in the interest of Mr. Isham. Defendant asserts that Isham was under a contract to purchase this stock from Seeber at a date just after the 1st of September, which required a large amount of money on Isham's part; that the money market at that time was very stringent, and Isham wished this injunction to be granted in order that he might be relieved of the necessity for carrying out, his contract just at that time; and that the procuration of the injunction was in reality the scheme of Isham, devised and set on foot by him and his attorney, Judge Gilhooly, the real object of which was to relieve Isham. He further asserts that it was a part of the scheme that advantage was to be taken of Schauble's necessity for money to extort from him a contract to sell the stock to Isham; and that Wilson, the complainant, was a party to the whole scheme. Without going into the details, it is enough for me to say that these assertions of defendant do not seem to me to be established by the affidavits in connection with the circumstances, to such a degree as to justify me in using them at this stage of the case in defeating complain-` ant's lien on this fund. The great difficulty in adopting that view is that, in its worst aspect, it still left or resulted in a great benefit to the defendant. It put a large sum of money in his pocket. He was put into possession of facts and circumstances which went to support his claim to the stock which he had been seeking for a considerable time to enforce, and which he was unable to find any lawyer to take up, and which facts and circumstances, when set forth in a bill and supported by affidavits, procured by Wilson's industry, and possibly and probably with the help of Judge Gilhooly, the defendant Seeber

was unable to meet, and finally was willing to pay $40,000 in settlement.

It is further said that Wilson was all the while urging his client, Schauble, to accept Isham's proposition to furnish the necessary redemption funds, and that he declared that he felt bound to furnish the money. I have already called attention to the fact that there was no such undertaking on his part found in the written contract. At the same time, he was naturally anxious to have Mr. Schauble provided with means necessary for the recovery of the stock, and very likely urged him to sign the second contract prepared by Gilhooly, by which he was to receive $25,000, beside a payment not exceeding $7,500, for the purpose of settling the suit of the brewing company against himself. That situation sufficiently, for present purposes, explains certain clauses in some of the affidavits made by the complainant in the main cause of Schauble v. Seeber, in opposition to a motion to dismiss that cause, which he resisted.

Upon the whole case, I come to the conclusion that the restraint should be continued until the final hearing.

(75 N. J. L 193)

BAUMAN v. COWDIN et al. (Supreme Court of New Jersey. June 10, 1907.) 1. Master and Servant-INJURY TO SERVANT -DEFECTIVE MACHINERY.

The duty of a master to his servant to exercise reasonable care is performed when he provides an apparatus in common use purchased from a reputable and experienced manufacturer and makes a test where a test is required.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 173, 180-192] 2. SAME TEST OF MACHINERY.

Whether the obligation of the master requires him to test immediately after its installation an apparatus in common use installed by a reputable manufacturer under an independent contract depends upon the circumstances of the case and the terms of the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 235-242.] 3. SAME.

The master is not liable when an accident happens to the servant on the first occasion when the apparatus is used, if the method of use is the same method as would be required to make a proper test.

(Syllabus by the Court.)

Error to Circuit Court, Passaic County.

Action by Emil Bauman against John E. Cowdin and others. Judgment for plaintiff, and defendants bring error. Reversed.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ. Michael Dunn, for plaintiffs in error. Sherrerd Depue, for defendant in error.

SWAYZE, J. The plaintiff, while employed by defendants as fireman in the boiler room of their mill, was injured by the explosion of a new boiler cleaner. The cleaner was of a type in common use, and had been put in just prior to the explosion by the Manchester

Manufacturing Company, a reputable and experienced manufacturer, under a contract which provided that the Manchester Company should attach the cleaner to the boiler. The work of attachment was completed Saturday afternoon, and fire was started under the boiler Sunday night. About 7 o'clock Monday morning, the plaintiff was ordered by the engineer to open the valves on the pipes which connected the cleaner with the boiler. One of the valves leaked, and the engineer ordered the plaintiff to tighten up the nuts on the valve to stop the leak. While he was engaged in this work, the accident happened.

It is a little difficult to tell exactly on what the plaintiff relies. It is said that the boiler cleaner remained on the floor of the boiler room several days before it was put up; that the valves were improperly located, and in particular that there should have been a stop valve at the boiler, so that the cleaner might be tested with a greater assurance of safety; that there was a structural defect in the cleaner, either because the top was of defective iron, or because the bolts holding the cap on were too tight and did not allow for the difference in expansibility; that the cleaner was improperly connected with the boiler; that no test was made by the defendants before the plaintiff was set to work; and that the steam pressure was let into the boiler too rapidly.

Many of these charges of negligence can be readily disposed of. The explosion was not caused by the fact that the cleaner remained on the floor of the boiler room several days before it was put up. If there was any deterioration in the cleaner during that time, it had no connection with the injury to the plaintiff. Nor was that injury due in any way to the location of the stop valve. The possibility that the plaintiff might have been a few feet further from the cleaner, and perchance have escaped injury, does not make the defendants liable. The structural defects in the cleaner, which seem to have been the real cause of the explosion, if attributable to negligence, were due to the negligence of the Manchester Manufacturing Company on whose experience and reputation the defendant had the right to rely. Atz v. Manufacturing Co., 59 N. J. Law, 41, 34 Atl. 980; Carlson v. Phenix Bridge Co., 132 N. Y. 273, 30 N. E. 750. The master's duty is to exercise reasonable care only, and that care is exercised when he provides an apparatus in common use purchased from a reputable and experienced manufacturer, and makes a test where a test is required, since that is the ordinary course of prudent men. Reynolds v. Merchants' Woolen Co., 168 Mass. 501, 47 N. E. 406, where the cases are collected. If the cleaner was improperly connected with the boiler, of which there seems to be no evidence, that also was the fault of the Manchester Company, an independent contractor. The fact

that the actual work of connecting was done by a plumber in the employ of defendants does not alter the case. He may have been pro hac vice the servant of the Manchester Company. D., L. & W. R. R. Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986, affirmed 59 N. J. Law, 562, 39 Atl. 637. And, in the absence of proof that the contract between the defendants and that company had been altered, we must assume that any work done in performance of the contract was done for the latter. Upon this subject we should sup pose that the evidence as to an allowance for his work upon the contract price was relevant; but, as no exception was taken to the refusal to admit it, we cannot review that ruling now. It is, however, unnecessary to dwell further upon this subject, since the accident was not caused by any impropriety in the method of connecting the cleaner and the boiler.

The only question in the case which requires much discussion grows out of the alleged failure to make a proper test of the cleaner before setting the plaintiff to work. We dismiss the suggestion of the defendants that this failure was known to the plaintiff, and that he therefore assumed the risk. It is true that he testified no test had been made, but this can only mean that, as far as he knew at the time of trial, there had been no test. This is not quite the same as positive proof that he had knowledge at the time of the accident of the want of a test and the danger.

The obligation of the master to test and inspect machinery at proper intervals is so well settled that no citation of authority is necessary. Whether this obligation requires him to test immediately after its installation apparatus installed by a reputable manufacturer under an independent contract depends upon the circumstances of each case, and the terms of the contract. It is not, however, presented by the present case. Assuming that such is the master's duty, the evidence on the part of the plaintiff is that such a test could only be properly made by heating the cleaner and introducing steam. One of the plaintiff's witnesses testified that no mere pressure test, whether by air or water pressure, would be a safe test of an apparatus which was to contain steam and become heated by steam under high pressure. The defendants' brief says: "All the experts on the part of the plaintiff, and all the witnesses on the part of the defendant, who had any knowledge on the subject, admitted that the steam heat test was the proper and wellknown test to use to determine whether or not this appliance was safe and fit to use in the mill." The only other test suggestedthe hammer test-was actually used, and it is not suggested that it was inefficient as far as it went. We assume that the plaintiff's view is correct. If so, there seems to be an insuperable obstacle in the way of his recovery, for the explosion was caused by the

introduction of steam heat into the cleaner. It would be quite illogical to find the defendants negligent for doing the very thing which, upon the plaintiff's contention, they were obliged to do in the performance of their duty to him. It is not to the point that the plaintiff did not know they were making a test. They were under no obligation to tell him their object in introducing steam into the cleaner. Nor is it of any significance, if it be the fact, that the introduction of steam was with a view to the actual operation of the cleaner, and not to a trial test. The first time steam was introduced answered all the purposes of a test. If the cleaner proved defective, its use would be stopped. If it withstood the test, there was no reason why it should not be used continuously for the purpose for which it was intended, if a continuous use was necessary. Nor can the plaintiff complain because he was the employé who helped start the working of the apparatus. The defendants had the right to start it through some of their employés, and there is no suggestion that the work was not properly within the plaintiff's line of duty.

The plaintiff's statement of the master's duty defeats his action, unless there was some Impropriety in the method of making the test. It is urged that the cleaner was heated, and the steam introduced too rapidly, and there is evidence that proper care required that the process should be a slow one. The difficulty in the plaintiff's way upon this view is that there is nothing to show that the heating of the cleaner and the introduction of steam in the manner in which these things were done would have resulted in an explosion, if the cleaner itself had not been structurally defective. The fact seems to be quite clear that the injury happened from this structural defect, and for such a defect the defendant is not liable.

The motion to nonsuit should have prevailed, and the judgment must be reversed.

(75 N. J. L. 111)

In re NEW YORK BAY R. CO. (Supreme Court of New Jersey. June 10, 1907.) TAXATION-EXEMPTION FROM LOCAL TAXATION-PROPERTY USED FOR RAILROAD PUR

POSES.

Application was made by a railroad corporation of this state for a summary determination as to certain lands in the city of J., located within the right of way of its railroad which had been assessed by the local authorities of the city during the period from 1894 to 1902, and also assessed during the same period by the state board of assessors as property used for railroad purposes, to settle their character for the purposes of taxation, and by which assessors the same has lawfully been assessed, pursuant to section 28 of the revised railroad and canal taxation act (P. L. 1888, p. 285), it appeared that work on the road began in 1889 and was continued from time to time upon some portions of the right of way for several years thereafter, but that no work was done in the vicinity of the lands assessed, which consisted of lots in certain city blocks, until the

It

latter part of the year 1900, up to which time part of the lands remained unused and unimproved and part was in use for farming purposes. In the latter year the work of construc tion began and was practically continuous thereafter until October 1904, when the road was completed so that it could be operated. was held (1) that ordinarily, where a company has not completed its road and is engaged in the work of construction, the exemptive words of the statute must be extended to property within the right of way not actually used for other purposes during such work of construction; (2) but, where such work of construction has been delayed beyond the requirement of reasonable necessity in order thereby to serve the interest or convenience of the company, then lands situated as these were before the work of construction began in that part of the right of way would not be entitled to the benefit of such exemption; (3) that the taxes assessed by the city authorities from 1894 to 1900, inclusive, must be sustained, and the assessment made by the state board of assessors during the same period must be canceled and the taxes collected thereon by the state returned to the applying company, that the taxes levied by the city for the years 1901 and 1902 must be canceled.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Railroads, §§ 371, 373, 374.] (Syllabus by the Court)

Application by the New York Bay Railroad Company for a summary determination of the character of certain lands owned by the applicant and located within the bounds of the city of Jersey City for the purposes of taxation. Judgment that the lands during the period from 1894 to 1900, inclusive, were not property used for railroad purposes within the meaning of Pub. Laws 1888, p. 269, exempting such property from local taxation, and that after the year 1900 the exemption was applicable.

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

James B. Vredenburgh, for the New York Bay R. Co. Robert Carey, for the mayor and aldermen of Jersey City.

HENDRICKSON, J. This is an application by the New York Bay Railroad Company for a summary determination of the character of certain lands owned by the applicant and located within the bounds of the city of Jersey City for the purposes of taxa. tion, which have been assessed by the local authorities of the city and also assessed by the state board of assessors as property used for railroad purposes, pursuant to the authority of section 28 of the revised act for the taxation of railroad and canal property (P. L. 1888, p. 269). The lands thus doubly taxed are plot 2, block 1390, Miles street, block 1383, lot 2, Miles street, block 1404, lot 3, and gore, as plotted upon the assessment map of Jersey City. The case shows that these plots were assessed for taxes by the city for the years 1894 to 1902, Inclusive, and that for the same years they were assessed by the state board of assessors, and that the taxes thus levied have been paid to the state. The lands thus assessed are within the right of way of the New York Bay

Railroad, the main stem which connects the Pennsylvania Railroad at Waverly with a freight terminal yard on New York Bay in that part of Jersey City called Greenville.

The company was formed in 1890 by a merger of other companies. Work was done on this railroad in 1889 and 1890 by filling in back of the dike on Newark Bay, and running that filling westerly towards Waverly, and this work continued off and on at that point for several years, covering a distance of several thousand feet. Some work was also done in 1889 near the crossing of the Central Railroad in Jersey City, 400 feet of trestle being built west of the crossing and 200 feet of embankment east of the crossing; but nothing was done in that part of the right of way which includes the blocks where the taxes in question were levied until the latter part of the year 1900, when the grading of the road and the building of bridges over streets and the laying of tracks commenced. Until that year the land in blocks 1383 and 1390 remained in its natural state, unimproved, and was not used for any purpose, but the land in block 1404, except the gore, was being used in 1900 for farming purposes, a truck farm being located therein, which was farmed until the farming was interfered with by work on the railroad. Construction trains ran over this property between 1900 and 1904, but the work was not completed so that the railroad could be operated until October 1904.

The question, therefore, is: Were the plots of ground covered by the assessments in question during the years named when they were levied property used for railroad purposes within the meaning of the revised act for the taxation of railroad and canal property, approved March 27, 1888 (P. L. 1888, p. 269)? It was held by the Court of Errors in U. N. J. R. R., etc., Co. v. Jersey City, 55 N. J. Law, 129, 26 Atl. 135, that the authorized right of way of a railroad duly acquir ed, over which railway has been constructed and is in good faith operated, is used for railroad purposes within the meaning of the act named, although it may not, for the time being, be wholly occupied by tracks or other railroad appliances. But the case sub judice presents a different question, for the taxes in dispute were levied during the period of construction, and before the road was in operation. The rule to be here applied was laid down by this court in State, etc., v. Haight, 35 N. J. Law, 40. That rule, briefly stated, is this: Where a company has not complet ed its road and appendages, and is engaged in the work of construction, the exemptive words of the statute must be extended to property, not actually used for other purposes, which has been acquired as the means of carrying into effect the objects of the charter, and is fairly within the plan upon which the work is being executed and will be necessary for the business of the company when the same is completed. Under this rule we would

have no hesitation in extending the claim of exemption from local taxation to the lands assessed for so long a period as was reasonably necessary for the construction of the road. But, where such a work has been delayed beyond the requirement of reasonable necessity in order to serve the interest or convenience of the company, then we think that lands in the situation that these were before the work of construction began in that part of the right of way would not be entitled to the benefit of such exemption. Such a ground of limitation in applying a rule of exemption to railroad property was laid down in the opinion in State v. Mansfield, 23 N. J. Law, 510, 57 Am. Dec. 409, where Justice Potts said that "the limitation must be fixed where the necessity ends and the mere convenience begins." The burden was upon the company seeking the benefit of the exemption to show that they had brought themselves within the rule here stated. This we think they failed to do. Another ground for denying the exemption to block 1404, lot 3, is found in the fact that in 1900 and prior thereto it was used for farming purposes. State v. Mansfield, supra.

Our conclusion, therefore, is that the lands so assessed by the local authorities of Jersey City during the period from 1894 to 1900, inclusive, were not property used for railroad purposes within the meaning of the exemption act, and that the city taxes so assessed thereon during the period named should stand, and that the assessments made on said lands 1 the State Board of Assessors during the same period should be canceled and the taxes collected thereon by the state returned to the applying company; that after the year 1900 the exemption must apply and the taxes levied thereon by the city authorities for the years 1901 and 1902 must be canceled.

The judgment will be entered without costs to either party.

(75 N. J. L 251)

EXERCISE BY CITY

MANDA v. CITY OF ORANGE et al. (Supreme Court of New Jersey. June 10, 1907.) 1. EMINENT DOMAIN LAYING WATER PIPES. In proceedings by a city to condemn the right to lay down water pipes in and upon lands of the citizens under the act approved April 21, 1876 (P. L. p. 366; Gen. St. p. 646, § 902), and the supplement thereto approved March 13, 1883 (P. L. p. 98; Gen. St. p. 652, § 925), it is essential to the validity of the proceedings that the act of April 21, 1876, should have been adopted by the city.

2. SAME-COMPLIANCE WITH STATUTORY PRO

VISIONS.

Statutes conferring the power of condemnation under the right of eminent domain are strictly construed. Every provision of the statute must be strictly complied with, and such compliance must affirmatively appear on the face of the proceedings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 131-134.] (Syllabus by the Court.)

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