in filing his bill must be deemed operative to deny to him the relief now sought.

Defendant began work on the porch improvement early in November, 1918, and at a time when complainant was occupying his cottage. Complainant admittedly observed the work at that time; but whether he then comprehended the real nature of the work is a matter of dispute. But in January following, when complainant visited the property, the work had been about two-thirds completed, and the entire nature and scope of the work was admittedly ascertained by complainant. Complainant then notified a certain improvement association of his objections to the work. That association appears to be an organization, composed of various lot owners, for the purpose of enforcing these restrictive building covenants, and complainant is a member of that association.

That association did nothing in the matter until early in March following, when its solicitor by letter apprised defendant that

his work was violative of the covenant and that unless he removed such portions as were violative of the restrictions a bill for an injunction would be filed at once. At about the same time complainant also saw defendant and informed him of his objections to the work. At that time the entire work had been practically completed. The bill herein was filed March 30th following, and seeks a mandatory injunction for the removal of the structure.

It thus appears that, even though when complainant observed the work at or near its inception he may not have been fully apprised of its proposed nature and extent, yet when the work had been about two-thirds completed he became fully acquainted with its exact nature and purpose, and, instead of apprising defendant of his objections to it, contented himself with informing the improvement association of his objections, and that association, which was in every respect solely his agent or representative, permitted defendant to complete the remaining onethird of the work without notifying defendant of existing objections to it, and about a month after the completion of the work the bill for mandatory relief was filed.

The work has been of an expensive nature, and should the relief now sought be granted defendant will suffer a loss of at least onethird of the construction cost by reason of complainant's failure to perform a clear duty to have defendant apprised of his objections to it, or to file a bill to interrupt it.

Whether defendant would have ceased further work had he been apprised of defendant's objections to it does not appear; but, when complainant ascertained the nature and extent of the proposed work and determined to enforce the covenant, it was clearly his duty to promptly apprise defendant of his attitude in the matter to the end that de

fendant could be afforded an opportunity to avoid further useless expense; and this is equally so whether or not defendant in fact knew of the existence of this restrictive building covenant. To compel defendant to remove this structure at the instance of coinplainant after complainant has, with full knowledge of the nature of the work, permitted at least one-third of it to be performed without protest to defendant and without application to this court to interrupt it, would, in my judgment, be unjust to defendant and violative of the recognized principles upon which equitable relief in general, and especially in cases of this class, is based. Smith v. Spencer, 81 N. J. Eq. 389, 87 Atl. 158.

(93 N. J. Law, 127) GARLAND v. FURST STORE. (No. 39.) (Court of Errors and Appeals of New Jersey. May 8, 1919.)

(Syllabus by the Court.)

1. NOTICE 14-PROOF-CONTEST.

Where liability is made to depend at all upon notice to a party, the adversary party must establish the notice before the other is called upon to contest it.

2. NEGLIGENCE 121(3)-FALL ON PREMISES OF ANOTHER-PRESUMPTION-RES IPSA LOQUITUR.

A mere fall of a person on the premises of another, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the owner; and the doctrine of res ipsa loquitur, which is only applicable when the thing shown speaks of the negligence of the defendant, not merely of the happening of the accident, does not apply. 3. APPEAL AND ERROR

907(1)-REVIEWEXAMINATION OR VIEW OF JURY.

Whether a jury is ordered by the court to inspect or examine premises as an aid in ascertaining the truth of any matter in dispute between the parties to an action, under Evidence Act (2 Comp. St. 1910, p. 2229) § 30, or understand the evidence given in the cause to view any place to enable the jury better to under Jury Act (3 Comp. St. 1910, p. 2976) §§ 31-35, the judgment rendered by the jury should nevertheless be reversed, if legally unsupportable in and by the record under review, as the questions presented to an appellate court should be decided upon what appears in the record brought up from the court below, notwithstanding a view was had by the jury which

tried the cause.

Minturn and Black, JJ., dissenting.

Appeal from Supreme Court.

Action by Helen Garland against the Furst Store. Verdict for plaintiff was affirmed on appeal to the Supreme Court, and defendant appeals. Judgment of the Supreme Court

as a rule will not constitute negligence. Now, in the case at bar, assuming that the floor was smooth, or even slippery, it is obvious that it was not so smooth or slippery as, for that reason, to cause falls, for, if it were, there would have been others besides that of the plaintiff, both at and before the time of her accident.

It is not perceived that there is any difference in the law of negligence between a person slipping on a stairway or on a floor; and in Schnatterer v. Bamberger Co., supra, 81 N. J. Law, at page 561, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139, this court, referring to the earlier case of De Mateo v. Perano, 80 N. J. Law, 437, 78 Atl. 162, observed that evidence of the previous knowledge of the landlord of the defective condition of a roof leader was deemed an element essential to carry the case to the jury, and this was laid hold of as a reason for deciding that notice of the defective step in the Bamberger store was requisite to be brought home to the defendant in order to create liability.

Nor does res ipsa loquitur apply. People frequently sustain falls when and where others do not. In Paynter v. Bridgeton, etc., Co., 67 N. J. Law, 619, 52 Atl. 367, it was held that a mere fall from a street car, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the operators of the car, and that the doctrine of res ipsa loquitur was applicable only when the thing shown speaks of the negligence of the defendant, not merely of the happening of the accident. In Kingsley v. D., L. & W. R. R. Co., 81 N. J. Law, 536, at page 541, 80 Atl. 327, 35 L. R. A. (N. S.) 338, Mr. Justice Minturn, speaking for this court, remarked that out of a car filled with passengers none had been produced to testify to the inherent or obvious danger incident to alighting therefrom, or that any other accident took place at that time, or at any other period, in the attempt to use the step and platform, and that the argument of negligence by the defendant in that case must proceed upon ad hominem lines, and not upon notice to the defendant from the happening of a previous accident, or from the clear obviousness of danger incident to the maintenance of a dangerous condition, and it was held in the case that the mere happening of

The mere fact that Mrs. Garland fell on the floor of the Furst store, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the owner, and the doctrine of res ipsa loquitur, which is only applicable when the thing shown speaks of the negligence of the defendant, not merely of the happening of the accident, does not apply. As the majority of this court said in Cronecker v. Hall, 105 Atl. 213, at page 214, that there was no testimony worthy of the designation from which it could be inferred that what the defendant's agent did was done in the scope of his master's business, so here it can as pertinently be remarked that there is no testimony worthy of the name which shows that the defendant was negligent. In our opinion a nonsuit, and, failing that, a direction of a verdict for the defendant, should have been ordered at the trial.

But the defendant respondent contends that, as there was a jury of view, the observations of the jurymen are evidence in the case, and, as a court of appeal cannot know what they saw, the verdict of the jury may not be set aside. The Supreme Court in its opinion stated that it was argued for appellant, and with much force, that the floor was of standard material, in general use for the purpose, and that there was no evidence of any lack of ordinary care in using and maintaining it; but the difficulty about adopting that line of reasoning was that the jury went to examine the floor, at the instance of the defendant's counsel, who asserted that it was in the same condition at the time of trial as it was in when plaintiff sustained her injury; that the jury came back and returned a verdict for the plaintiff; that what they saw or felt, or both, did not appear in the printed case, and the court could not tell but that their observation disclosed a condition which, if referred back to the time of the accident, was persuasive of negligence on the defendant's part.

This was in effect a ruling that what the jury saw amounted to mute evidence tending to establish defendant's negligence, and for that reason, in addition to the other one given, namely, that there was evidence of an unusually slippery floor, stated arguendo, the judgment was affirmed, apparently upon the theory that, because the extent to which the

the verdict could not be overridden, even if the proofs to be found in the record were not, in and of themselves, sufficient to sustain the jury's finding. This we deem to be error. In our opinion, for reasons to be presently stated, a judgment should be reversed, if legally unsupportable in and by the record under review, notwithstanding a view of the premises by the jury.

[3] The respondent urges that the view by the jury was had under section 30 of the Evidence Act. Comp. Stat. p. 2229. It is true that section 30 provides that, in case it shall appear that an inspection or examination of any premises would aid in ascertaining the truth of any matter in dispute between the parties to an action, it shall be lawful for the court to order an inspection or examination of the premises by the jury, or the opposite party or parties, or such persons as shall be named as witnesses, which inspection or examination may be ordered either before or during the progress of the trial. This is not the jury of view statute, strictly so called. That is to be found in the Jury Act. Comp. Stat. p. 2976, §§ 31-35.

The inspection or examination by the jury under section 30 of the Evidence Act is not accompanied with showers, as is the case under section 31 of the Jury Act. That act in section 35 provides that the court may, at any time after the jury is drawn, order that the jury shall view any place, if in the judgment of the court such view is necessary to enable the jury better to understand the evidence given in the cause, and such view shall thereupon be had in such manner as the court shall direct. The motion in this case was for the appointment of a jury of view, rather than one of inspection or examination assuming there is any substantial difference between them. Counsel for the defendant appellant moved for permission to have the jury go and look at the floor, and the trial judge ruled that he would allow the jury to go under the care of an officer to view the premises, and that each side might select a man a shower, of course, although that was not stated. Obviously, if the court ordered an inspection or examination by a party or witness under the Evidence Act, either could give testimony before the jury as to what they saw; but if the jury made the inspection or examination, what they saw might aid in ascertaining the truth. That would be no more than enabling the jury better to understand the evidence by a view under the Jury Act. It is quite impossible to believe that the Legislature intended to place upon the statute books two schemes with reference to views by juries, one in which what they saw should be substantive evidence and the other not.

In the view we take of this question, it is unnecessary to decide to what extent an inspection or examination of premises under section 30 of the Evidence Act, or view of

the premises under sections 31-35 of the Jury Act, may or may not be evidential, for in no event could either be conclusive, and thus prevent the court from controlling the issue as matter of law.

The defendant appellant cites two cases in this state on the question of view: Gaunt v. State, 50 N. J. Law, 490, 14 Atl. 600, and De Gray v. N. Y. & N. J. Tel. Co., 68 N. J. Law, 455, 53 Atl. 200. Gaunt v. State is, if anything, against his position. It was there held that upon the trial of an indictment for fornication, where the bastard and the putative father were viewed by the jury, the jury might consider whether there was a resemblance or not between them, and that in such cases the proper instrument of proof is inspection by the jury, and not the testimony of witnesses; that is, resemblance between the child and the putative father. But this case is not an authority to the effect that a judgment may not be reversed, because there has been a view by the jury. Mr. Justice Garrison, who wrote the opinion, concludes with the assertion that the child was in court during the trial, and the attention of the jury was directed to it, that the defendant was a witness, and that in those circumstances it was not error for the court to refuse to charge the jury that they must not consider the question of resemblance at all, and that, if they did consider it, it must be from the testimony from the mouths of witnesses, and not from their own view. Thus it appears that the only question decided was that it was not error for the trial judge to refuse to charge that the jury must not consider the question of resemblance, and, if they did, it must be from the testimony of witnesses, and not from their own view. The case, therefore, is not an authority on the precise question under discussion in the case at bar.

Nor is De Gray v. N. Y. & N. J. Tel. Co. That was a trial of an appeal from an award of commissioners who assessed land in condemnation proceedings. The trial judge charged, among other things, that the jury might adopt the opinions of witnesses so far as reasonable, and had the right to take into consideration their own experience as to whether certain structures were detrimental to the market value of abutting property, and if, in their experience, they were, the jury would make the compensation accordingly, and if they were not, and the jury were not inclined to adopt the views that had been expressed to the contrary, their award would be proportionally less. This was held to be error for several reasons, among which was that to avail a party of a fact known to a juror he must be sworn and examined as any other witness, so that his evidence, like that of any other witness, may be first scrutinized as to its competence and bearing upon the issue, and for the further reason that the court and parties may know upon what evidence the