an amendment of the pleadings at the trial J. Law J. 148) was where the plaintiff had without objection. Assuming, however, that acquired the title to the land subsequent to this is not so, it ought not to result in a re- the date of the lease. The fourth (Messler versal. Where, as here, the real question in v. Fleming, 41 N. J. Law, 108) was upon the controversy has been fully and fairly tried, question of the right of a landlord to recover though not precisely pleaded, and the com- rent, where he had lost title by foreclosure plaining party has not been surprised or in-proceedings after the date of the lease. The jured, this court on appeal has the power to first case cited has no relevancy to the presamend the pleadings in order to support the ent case. The last three are upon the welljudgment, and will in such case, in the inter-established exception to the rule that a tenest of justice, exercise the power. Chess v. ant is not estopped to deny his landlord's title Vockroth, 75 N. J. Law, 665, 70 Atl. 73; Van where after the making of the lease sued on Houten v. Van Houten, 89 N. J. Law, 301, 98 he parts with the title. As we have pointed Atl. 251. out, we are not concerned here with that exception.

We come now to the main contention of the defendant, which is that the trial judge erred in refusing to permit the defendant to amend its answer by pleading that on May 4, 1914, the plaintiff had conveyed to the Levenson Lumber Company the title to the premises demised to the defendant in June, 1914, and by excluding the record of the deed of fered in evidence for that purpose.

The fact that the defendant was in possession as the tenant of the plaintiff under the first parol renewal of the written lease when the second parol lease was made is immaterial. The rule that one who goes into possession as a tenant of another is estopped to deny the title of the landlord at the time the lease was made, so long as the tenant is undisturbed in his occupation of the demised premises, applies equally to a case where the tenant was in possession under a prior lease at the time of making of the renewal lease sued upon, as well as where he takes possession under and by virtue of the latter. The circumstance that the defendant removed from the premises on July 31, 1914, as it contends, or on August 4, 1914, as the plaintiff contends, is immaterial.

[3-5] We think the point has no merit. In an action by a landlord to recover rent the tenant, as a general rule, is estopped to set up in defense the want of title on the part of the landlord at the time the lease was made, so long as the tenant is undisturbed in his occupation of the demised premises. Cooke v. Loxley, 5 T. R. 4, 2 Rev. Rep. 521, 15 Eng. Rul. Cas. 297; Howell v. Ashmore, 22 N. J. Law, 261; Horner v. Leeds, 25 N. J. Law, 106. This is not a mere technical rule, but is conformable to the contract between the parties; for, so long as the tenant is not disturbed in his occupation, he is bound to pay the rent, whether the landlord's title is defec-year, as it had contracted to do. In that situtive or not.

Of course this general rule does not forbid the tenant from showing that the landlord's title has expired or been extinguished since the creation of the tenancy; nor does it preclude a tenant from showing that he has been evicted by the owner of the paramount title, in an action by his landlord for subsequently accruing rent. But this case does not call for the application of these exceptions to or qualifications of the general rule. As we have pointed out, the defendant's possession of the demised premises was undisturbed. He therefore could not lawfully be permitted to show that the title of the plaintiff was rendered defective by a deed given before the parol lease sued upon was made.

The cases cited by the defendant are not to the contrary. The first (Condit v. Neighbor, 13 N. J. Law, 83) was upon a lease made to a husband and wife, and the wife survived her husband and remarried, and it was held that the rents under the lease after the decease of the second husband did not belong to his representatives. The second (Abbott v. Hanson, 24 N. J. Law, 493) held that, if a lessor parts with title subsequent to the making of the lease, he cannot sue for rent there

Assume, as the defendant contends, that it vacated the premises on July 31st, the last day of the old term. If so, it did so voluntarily when it might have remained for another

ation there would not be much appearance of justice in holding that it can defend against its engagement to pay rent by showing that there was a defect in its landlord's title. The true rule is that a tenant who enters into a renewal of the lease under which he was in possession is estopped from denying his landlord's title at the time the renewal lease was made, even though the tenant vacates the premises on the last day of the old term, when he does so without the consent of the landlord and without any interference of his possession.

[6] The record of the deed of May 4, 1914, purporting to be from the plaintiff to the Levenson Lumber Company was offered in evidence for the purpose (stated at the trial) of showing that "since they have not the title they cannot collect the rents," and for no other purpose. We have already shown that it was incompetent for the purpose offered. It seems to be argued now that it was admissible for another purpose, and hence its rejection should lead to a reversal. Whether it was competent for any purpose is doubtful, but, had it been received, its reasonable effect in the direction indicated would be so

(107 A.)

think its rejection does not justify a reversal.] have been substituted for the latter in civil Simon v. Henry, 62 N. J. Law, 486, 41 Atl. cases only. Practice Act 1912 (P. L. p. 382) 692. § 25.

The judgment will be affirmed, with costs.

For these reasons the appeals herein are dismissed.

(93 N. J. Law, 222)

RATHBUN v. BRANCATELLA. (No. 81.) (Court of Errors and Appeals of New Jersey. June 20, 1919.)

1. EVIDENCE 171, 314(1)—HEARSAY-BEST EVIDENCE-COLLATERAL MATTERS.

In an action for personal injury resulting from collision of an automobile with a pedestrian, testimony of a witness who heard another call out the license number of the automobile and of the officer who took the number from this witness and reported it to police headquarters was admissible, and not hearsay testimony upon a collateral inquiry as to whether the number transmitted by the party calling it was the same as that recorded by one witness and transmitted by her to the officer, since the rule regarding best evidence does not obtain where the inquiry or the production of the document involved is only incidentally or collaterally involved in the controversy. 2. EVIDENCE

314(1)-HEARSAY-COMPLETE CIRCUMSTANCES OF INCIDENTAL FACT.

from collision of an automobile with a pedestrian, In an action for personal injury resulting where M. testified he called out the license number of the machine to Miss S., and she testified she at once committed it to paper and remembered it from that fact and from frequent iteration in judicial proceedings, and that she transmitted it to an officer within a short time, each of these witnesses was competent to verify the

Applications by William S. Bowen and others for a writ of certiorari to the State of New Jersey and Court of Quarter Sessions of Union County, which was consolidated with an application by John H. Monahan and others for a writ of certiorari against the same respondents. From orders of the Supreme Court denying the motion to quash and remitting the record to the court of quarter sessions, the prosecutors appeal. Ap-number, the paper being lost, not for the purpeals dismissed.

James R. Nugent, of Newark, for appellants.

Walter L. Hetfield, Jr., Prosecutor of the Pleas, of Plainfield, for respondents.

PER CURIAM. Eight persons were indicted for conspiracy in these cases, and two writs of certiorari were allowed bringing up the indictments. The cases were consolidated and argued together in the Supreme Court, wherein an opinion was filed denying the motion to quash and remitting the record to the Union quarter sessions for further proceedings. The defendants, who were the prosecutors, have appealed to this court from the judgment rendered in the Supreme Court on the motion to quash.

[1, 2] Under the doctrine of State v. Riggs

pose of furnishing substantive proof of the
ownership of defendant's car, but to present a
complete concatenation of circumstances aris-
ing out of an incidental fact, and evidencing
that in the transmission the fact transmitted
was identical from inception to ultimate deliv-
ery at police headquarters.
3. MASTER AND SERVANT
TO THIRD PERSON-COLLISION AT CROSSING
-AGENCY-QUESTIONS FOR JURY.

332(1)—INJURY

In an action for injuries to a pedestrian struck by an automobile, questions involving the agency of the chauffeur, his presence in the car, the characters upon the license plate, and the type of the car were questions of fact for the jury.

Appeal from Circuit Court, Hudson County.
Action by Marietta Rathbun, administra-

trix of the estate of Frank Rathbun, deceas-
ed, against Bruno Brancatella. Judgment
for plaintiff, and defendant appeals. Af-
firmed.

et al., 91 N. J. Law, 456, 106 Atl. 216, the action of the Supreme Court on a motion to quash an indictment is discretionary and cannot be reviewed in this court. Besides, In an action for damages, resulting from these cases are brought here by "appeals" an automobile collision with a pedestrian, instead of by "writs of error." The former one of the questions at issue was the owner

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

car.

It is urged now, as it was below, that the testimony of Miss Sullivan and Officer Grant was hearsay, and was inadmissible. The question propounded at the trial, and the theory upon which the testimony was admitted, was not whether the number thus transmitted afforded legal proof of the ownership of the particular plate or number by the defendant, but whether as a fact the number transmitted by Menandier was the number recorded by Miss Sullivan, and by her transmitted to Officer Grant.

ship of the car. A bystander, observing the [transmitted as the number of the defendant's number, called it out aloud to another by stander, who at once made a written note of it, and gave it to a police officer within 15 minutes thereafter. The testimony of the latter two witnesses upon the subject of the identity of the number was objected to as hearsay, but the testimony was admitted. Held, its admission was proper as relating to a collateral and incidental inquiry, bearing upon the question of identity, viz. whether the number called out by the first bystander and heard by the second was the same which was transmitted by the latter to the police officer, and by him reported to police headquarters.

Pomerehne & Laible, of Newark, for appellant.

Mark Townsend, Jr., of Jersey City, for respondent.

MINTURN, J. (after stating the facts as above). The husband of the present plaintiff, while attempting to cross Fourth street at Avenue C, in Bayonne, was struck by defendant's automobile, proceeding at a high rate of speed while being driven by his chauffeur. As a result of the collision the deceased suffered the injuries from which he died, and a jury at the circuit to whom the consideration of the facts was submitted by the trial court found the defendant guilty of the negligence alleged against him, and from that verdict this appeal was taken upon the ground that the court refused elther to grant a nonsuit, or to direct a verdict. [1] Upon consideration of the facts we have concluded that the trial court was correct in its rulings in these respects, and that the verdict must stand unless the exceptions taken to the admission of certain evidence are legally supportable. One Menandier, a bystander, attracted by the noise of the impact, observing the character and color of the license plate upon the colliding machine, called out, in a loud voice, to Miss Sullivan, another observer, a school-teacher, and the

daughter of a resident in the locality, the the number he had observed. She for the purpose apparently of remembering the number, entered her home and wrote the number upon an envelope.

Its logical and evidential effect upon the substantive proof of ownership of the car, which was the question at issue, was entirely of an incidental or collateral character, in a sequence of circumstances not directly connected with the main proof before the jury.

In this light it was admissible, and not within the category of hearsay testimony. Upon a collateral inquiry of this character, it has been laid down that the rule requiring the production of the best evidence does not obtain where the inquiry or the production of the document involved is only incidentally or collaterally involved in the controversy. 10 R. C. L. 55 and cases cited; Faulcom v. Johnston, 102 N. C. 264, 9 S. E. 394, 11 Am. St. Rep. 737; Dixon Co. v. Myers Co., 71 W. Va. 715, 77 S. E. 362, cited with annotations in Ann. Cas. 1914C, 115.

Prof. Greenleaf enunciates that such testimony is admissible in the sound discretion of the trial court. 1 Greenleaf, 124. He declares it to be not hearsay, but original evidence; the question in fact being whether the declaration was in truth made, and not its truth or falsity. Id. 123.

Prof. Wigmore, collocating this character of proof under the generic classification of res gestæ, subclassifies it with scholastic accuracy, under the terminology "Spontaneties or attributable to a bystander, arising ous Exclamations," attributable to the parfrom "that nervous excitement which renders an utterance admissible equally for a mere

bystander as well as for the injured or injuring person." 3 Wigmore, 2263. He cites from Milne v. Lerster, 7 H. & N. 786, in elucidating the remarks of C. B. Pollock that

one in a crowd, when an accident occurs, and the conduct of a particular person is in question, it may be asked whether some one in the crowd did not cry out 'Shame!'"

For some time she retained the envelope, "Courts as far as they can are disposed to and used it as a reference for the purpose receive in evidence whatever can throw any of enabling her to testify at various proceed-light on the matter in issue. No doubt for that ings emanating from the accident. After reason, in the case of an exclamation by any some time, thinking the envelope of no future value, she destroyed it during a process of house cleaning. Among others she imparted the number to a police official, Officer Grant, within 10 or 15 minutes after the accident, and he reported it at police headquarters. Within the week after the accident, Menandier gave a similar statement to the police department. An agent of the state department

The case of Lord George Gordon, and the admission of the incidental cries of the mob as they accompanied him to the Parliament House, present themselves as a familiar

(107 A.)

trine in a state trial involving treason. Rex | proceedings, and that she transmitted it to v. Gordon, 21 How. St. Tr. 514.

So also it is declared that, where a witness testified that he truly stated to another | (Court of Errors and Appeals of New Jersey. a fact which he has since forgotten, he thereby renders competent the testimony of that person as to what the forgotten statement actually was. 16 Cyc. 1198, and cases; 1 Elliott, Ev. 389, and cases.

[2] When therefore Menandier testified that he called out a number to Miss Sullivan, and she testified that she at once committed it to paper, and remembered it from that fact, and from frequent iteration in judicial employer.

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

John M. Enright, of Jersey City, for re- held by the bank. Her counsel advised her spondent Globe Tire Co.