contract. It does not appear that plaintiff | es, a nuisance per se, but, as we have said, a brought any suit against Giordano; he did legitimate appliance for building purposes. bring suit against Balene, and later added | And the rule is thoroughly settled that, where appellant Max as owner. At the trial the court directed a verdict in favor of Balene, the principal contractor, but gave the case to the jury as against appellant, and this ruling and the denial of a motion to nonsuit are the principal grounds of appeal. The questions that the jury were instructed to decide as conditions of appellant's liability were, first, Was the scaffold, though erected by Giordano, a nuisance? And, secondly, If so, had it existed as such long enough for a reasonable owner to notice the fact and take proper steps to abate it? We find ourselves unable to subscribe to this theory, or to see any theory of the evidence upon which the defendant's liability could be predicated. As a general rule it may be conceded that any private erection obstructing a public street is prima facie a nuisance; but this is subject to several important exceptions, mostly connected with the reasonable use by an abutting owner of his private property. Thus he is entitled to stand teams and vehicles in front of his property for a reasonable time; obstruct the sidewalk temporarily to receive and deliver goods (37 Cyc. 208; Tompkins v. North Hudson Street Railway Co., 63 N. J. Law, 322, 43 Atl. 885; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. (Rep. 831); pile building materials in the street in front of his premises during the erection of a building thereon, and keep them there for a reasonable time (Friedman v. Snare & Triest Co., 71 N. J. Law, 605, 61 Atl. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, 2 Ann. Cas. 497; Van O'Linda v. Lothrop, 21 Pick. [Mass.] 292, 32 Am. Dec. 261); and, as a necessary incident of building maintain scaffolds, cranes, and similar appliances needed in the erection of the outside walls. Such obstructions are an everyday matter in our larger cities. Such use is presumably lawful, until it appears that it is unreasonable. See King v. Norcross, 196 Mass. 373, 82 N. E. 17. There is no question of the power of the municipality to regulate such use, and usually such regulations exist, but there is nothing in the present case on this point, and we are left to the common-law rights of an abutting owner to build on his property, and make use of the ordinary appliances, and incidentally obstruct the street to a reasonable extent in so doing. A reasonable and proper scaffold being permissible, it was presumably lawful for the mason contractor to erect one; and a scaffold would not be, under the circumstanc one employs a contractor exercising an independent employment and hiring his own servants to do a work not in itself a nuisance, the contractor alone is liable for an injury resulting from the negligence of himself or his servants, unless the employer is in default in selecting an unskillful or an improper person as contractor. Cuff v. Newark & N. Y. R. R. Co., 35 N. J. Law, 17, 10 Am. St. Rep. 205; Redstrake v. Swayze, 52 N J. Law, 129, 414, 18 Atl. 697. It is plain that the building of the new building was not a nuisance per se; nor was the doing of the mason work thereon, contracted by Balene to Giordano; nor, as we have said, was the erection of a proper scaffold for the execution of that work. The owner had no control over either contractor as to the methods of his work; so that if Balene or Giordano, in executing their contracts, unreasonably obstructed the street by needless piles of rubbish, or an improper scaffold, Max had no power to intervene except as a member of the public, and hence could not be accountable to a passer-by injured by a falling brick, or, as in this case, a projecting timber of a scaffold in use for the laying up of the wall. The building was unfinished, and normally such a scaffold would remain till no longer needed for the front wall, which was under erection; so the question of its maintenance for an unreasonable time is out of the case. The trial court properly directed a verdict in favor of Balene, evidently on the theory that he as principal contractor was not responsible for the negligent erection of the scaffold by his subcontractor. A fortiori should a verdict have been directed for the owner, who was one remove further away from Giordano, and for failure so to do the judgment must be reversed that a venire de novo issue. Some point is made in respondent's brief of testimony that the owner employed a night watchman, as evidencing his control of the details of the operations; but we find nothing in this fact to negative the evidence showing the employment of independent contractors to do the work. If he chose to employ a watchman by the year to prevent depredations on his land that was his affair, and had no bearing on the freedom of action of Max and Giordano under their contracts. The same is true of the owner's casual inspections from time to time. The judgment is reversed. (93 N. J. Law, 253) (107 A.) STATE v. AGREST et al. (No. 35.) (Court of Errors and Appeals of New Jersey. June 20, 1919.) whether there is any evidence to sustain a judgment. 4. CARRIERS 318(8)-JITNEY CAR-INJURY SUSTAINED WHILE BOARDING-EVIDENCE. In action for injury sustained while atthere was some evidence to sustain judgment for plaintiff. APPEAL AND ERROR 773(4) — FAILURE TO tempting to board moving jitney car, held, that FILE BRIEFS AFFIRMANCE. Where a case was agreed to be submitted on briefs, and the brief of defendant in error was filed within time, but no brief has been filed on behalf of the plaintiff in error within the time limited by rule 35, as amended May 19, 1904, nor at any other time, the writ of error will be considered to be abandoned and the judgment will be affirmed. Error to Supreme Court. Proceeding by the State against Abraham Agrest and others. Judgment for the State, and the defendants bring error. Affirmed. J. Henry Harrison, Prosecutor of the Pleas, of Newark, for the State. PER CURIAM. This case was agreed to be submitted on briefs, and the brief of the defendant in error was filed within time. No brief has been filed by or on behalf of the plaintiffs in error within the time limited by rule 35 as amended May 19, 1904, nor at any other time. Therefore the writ of error is considered to be abandoned, as provided in the rule, and the judgment under review will be affirmed. (93 N. J. Law, 259) TANSEY V. TEDESCO. (No. 60.) (Court of Errors and Appeals of New Jersey. June 20, 1919.) 1. APPEAL AND ERROR 1082(2) OBJECTIONS IN LOWER COURT AMENDMENT TO PLEADINGS. Court's action in permitting amendment to plaintiff's pleadings, after close of plaintiff's case, will not be considered by Court of Errors and Appeals on appeal from Supreme Court, where no objection to amendment was made in lower court, and where court's action in permitting amendment was not made ground of appeal in Supreme Court. 2. APPEAL AND ERROR HARMLESS ERROR. Appeal from Supreme Court. Action by Bernard T. Tansey against Charles Tedesco. Judgment for plaintiff affirmed by Supreme Court, and defendant appeals. Affirmed. Pomerehne & Laible, of Newark, for appellant. Michael J. Tansey, of Newark, for respondent. PER CURIAM. This case was tried in the Second district court of Newark, and resulted in a verdict and judgment for the plaintiff. On appeal to the Supreme Court the judgment was affirmed in the following per curiam: "This case is on appeal from a judgment of the Second district court of Newark entered on a verdict of a jury rendered in favor of the plaintiff below against the defendant below damages sustained by him by reason of alleged in an action brought by the plaintiff to recover negligence of the defendant. "The appellant assigned the following reasons on which he relies for a reversal of the judgment: (1) Refusal to nonsuit the plaintiff; (2) refusal to direct a verdict in favor of the defendant; (3) no evidence of defendant's negligence; (4) plaintiff was guilty of contributory negligence; (5) because the court permitted the case to go to the jury. "All these reasons can properly be considered under one head, whether or not the trial judge erred in refusing to direct a verdict for the defendant. The en "The plaintiff was an intending passenger ready to board a jitney operated along a public street by the defendant's servant. trance to the jitney was in front, where the The door was driver sat to operate the car. a folding one and swung inward, and at the time the plaintiff attempted to enter was open, according to his story. In describing how the accident happened the plaintiff says: 'I waited there of course, until it got near and I hailed 1046(5)—REVIEW-it. He saw me hail him and he came along and On appeal from Supreme Court affirming judgment for plaintiff in personal injury action, where only issue involved was whether district court properly permitted case to go to jury, Supreme Court's observations that defendant was negligent, and that such negligence was the proximate cause of the injury, were not reversible error. 3. APPEAL AND ERROR 866(3) — REVIEW VERDICT JURY QUESTION. On appeal from action of court in permitting case to go to jury, the only question is slowed up as they always do-they seldom stop * * "The plaintiff further testified that the driver I had his hand on the wheel, saw the condition in which the plaintiff was, in fact, was looking right at him, and made no effort to stop his ve For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes hicle but kept 'right on going,' and as a conse- I made is that the Supreme Court erred in its quence the plaintiff fell and was run over and severely injured. "The plaintiff, on cross-examination, testified that when he attempted to board the jitney it was going about eight miles an hour, but he unfolds his estimation of such speed by saying in the same connection that the jitney was going as fast as a man could walk. "This was the posture of the case when the plaintiff rested. The credibility of the plaintiff's story was for the consideration of the jury. On motion for a nonsuit, the question of the sufficiency of the evidence to establish negligence to warrant a submission of the cause to the jury is a court question. "As the case stood, it appeared that the defendant's servant refused to stop the jitney after he discovered the situation of danger in which the plaintiff was. The refusal to stop the car was negligence and also the proximate cause of the injury. Plaintiff's attempt in the first instance to enter the moving car, even if it be conceded that such act was negligent, had no causal connection with what occurred subsequent thereto, for it is clear that if the driver had stopped the car when requested, and when he saw the plaintiff's situation, the accident would not have happened. "The refusal to nonsuit was not error. The motion to direct a verdict was based upon the weight of the evidence. This we do not consider. The only question on appeals of this character is whether there is any evidence to sustain the judgment. We think there is, and therefore the judgment of the district court is affirmed, with costs." There was one new error assigned in this court, and that is that the trial court permitted an amendment after the close of the entire case, and it is argued that it was error for the court to submit the case to the jury upon a theory different from the facts alleged in the state of demand. At the close of the case a motion was made for the direction of a verdict for the defendant, which was denied. In the course of the colloquy between the court and counsel on this motion, the court said, addressing counsel for the plaintiff: "I suggest that you insert in paragraph 2 of your demand the word 'negligently' before the word 'refused,' to show that the liability occurred through the failure of the defendant's agent to stop the car on notice of plaintiff's danger." observation that the refusal to stop the car was negligence and also the proximate cause of the injury. This, in our view, was a careless remark of the Supreme Court, but is not error which should lead to a reversal of the judgment, as the question before us is whether or not the district court properly permitted the case to go to the jury, which was substantially all that was involved in the appeal. [3, 4] The judgment under review herein should be affirmed, for the reasons expressed in the opinion of the Supreme Court. Appeal from Supreme Court. Action by Charles A. Fischer, executor of Arnoldine Fischer, deceased, against William F. Spierling and Amelia Spierling, his wife. Judgment for plaintiff, and defendants ap [1] The amendment was actually made, peal. Affirmed as to Amelia Spierling, and and appears in the state of demand as print-reversed as to William Spierling. ed. pellants. Randolph Perkins, of Jersey City, for respondent. There was no objection interposed by Robert Carey, of Jersey City, for apcounsel of defendant to the making of this amendment, and the point that it was error to permit it was not made a ground of appeal in the Supreme Court, nor was it argued there. As it has been repeatedly decided that a court of review is not required to consider points not made in a court of first instance or in an intermediate court of appeals, this question is not properly before us. GUMMERE, C. J. This action was brought by the executor of Arnoldine Fischer, deceased, against William F. Spierling, and Amelia Spierling, his wife. A separate cause of action is exhibited against the re[2] In the brief of appellant the first point spective defendants. The plaintiff has joined (107 A.) them in one suit under the authority of section 6 of the Practice Act of 1912 (P. L. 378). the time of making the representation he knew that there were prior liens upon the property to the extent of $12,000. Mrs. Fischer paid the mortgage upon the lots pur. chased by her, and she bought in the prem ises covered by her two $3,000 mortgages at a sheriff's sale held on the foreclosure of the prior incumbrances. to be the fact, and that they were subject to a mortgage of $2,105.24; and that Mrs. Fischer was induced to buy them by reason The case against Mrs. Spierling was that of this false representation. Second, that plaintiff's decedent had loaned to her at Spierling induced Mrs. Fischer to purchase different times, and in different amounts, the two mortgages of $3,000 each by representsum of $10,000, and that Mrs. Spierling ex-ing to her that they were first liens upon ecuted and delivered to decedent as evidence the property covered thereby, although at of her indebtedness four separate bonds, each of which was secured by a mortgage on property owned by her. There were prior mortgages upon the property thus pledged which were subsequently foreclosed. At the sales under the foreclosures the mortgaged premises did not produce enough to pay any part of the moneys due upon Mrs. Fischer's mortgages, but only enough to satisfy liens which were prior thereto. Mrs. Fischer was a party to the foreclosure suits, and was the purchaser at the sheriff's sales. The $10,000 with interest thereon being still wholly due and unpaid, the present plaintiff, as executor, brought this suit upon the four bonds given by Mrs. Spierling to the decedent. On the trial of the case the court directed a verdict in his favor for the full amount of his claim against her. Subsequently a rule to show cause was allowed, with certain exceptions reserved, and most of the matters in issue between the parties were disposed of on the hearing of that rule. The only matter which was reserved, and which has been argued before us, was the refusal of the trial court to permit Mrs. Spierling to prove that the value of the property covered by the mortgages given to Mrs. Fischer, and purchased by the latter at the sheriff's sale, was much in excess of the price paid at that sale, the excess being sufficiently large to pay off the mortgages of Mrs. Fischer. [1] The question of the competency of this offered evidence is not an open one. In the case of Snyder v. Blair, 33 N. J. Eq. 208, where a similar contention was put forward on an attempt to enforce a decree for deficiency, it was held that the sum for which the mortgaged premises were sold must, so long as the sale stands, be taken, as between the parties to the suit, as a conclusive test of the value of the mortgaged premises; the price realized at the sale, whether it be more or less than is required to pay the amount adjudged to be due by the decree, being the only known legal standard of value. The same question came before this court in the later case of Currie v. Sisson, 34 N. J. Eq. 578, and the doctrine of Snyder v. Blair was unanimously approved by us. The court charged the jury with relation to the first of these transactions that the plaintiff was entitled to recover the amount paid by Mrs. Fischer in order to free her land from the lien of the existing incumbrance; the theory upon which the instruction was rested being that as Spierling had contracted to sell the land to her free from incumbrance he was in law bound to relieve the land from those which existed at the time of the sale to her. With relation to the second transaction the court charged the jury that the plaintiff was entitled to recover from Spierling the amount of the purchase money paid by Mrs. Fischer at the foreclosure sale of the prior incumbrances, amounting, with interest, to something like $17,000. [2] The correctness of the rule with relation to the damages recoverable upon the first branch of plaintiff's claim against William Spierling is not challenged. It is conrelation to the measure of damages to be tended, however, that the court erred with awarded upon the other transaction; and we concur with defendant's counsel that this instruction was erroneous. The plaintiff's decedent was induced by the false representation of Spierling to invest $6,000 in securities which were utterly valueless. The effect of this investment was to cause a total loss of these moneys, and the extent of the defendant's obligation was to reimburse her for that loss. Her subsequent conduct in purchasing at the foreclosure sale of the prior mortgages (a matter in which he had no part) could not increase or decrease the extent of defendant's liability. If the value of the property purchased had been in excess of all the liens upon it, including those held by Mrs. Fischer, that fact would not have operated to reduce Spierling's liability by one penny. It is equally true that if the property had been worth much less than the The judgment against Mrs. Spierling will total amount of the incumbrances on it, and be affirmed, with costs. The case against the defendant William F. Spierling was as follows: First, that he sold certain lots to Mrs. Fischer, falsely representing to her that they were free from incumbrance, although he knew the contrary less than the price paid for it by Mrs. Fischer, that fact could not have increased such liability. Her right was to hold him responsible for the loss sustained by her by reason of his false representation. His obligation to her was to reimburse her for the money so lost. The amount of the loss being $6,000, she was entitled to recover that amount, with interest, and nothing more. no notice posted in a conspicuous place at the crossing notifying the public that the bell was out of order. For the reason last stated the judgment The statute of 1909 (P. L. p. 137), in subagainst William F. Spierling must be re- stance, provides that any person, approachversed, and the record remitted in ordering the right of way of a railroad which that a venire de novo may issue. (93 N. J. Law, 231) crosses a public highway and at which a crossing bell has been installed by the railroad company designed to protect the traveling public from danger in passing over the crossing, is entitled to assume such warn SNUFFIN V. McADOO, Director General of ing appliance is in good and proper order RAILROADS Railroads. June 20, 1919.) INGS-CONTRIBUTORY NEGLIGENCE. and will be duly and properly operated, un (Court of Errors and Appeals of New Jersey. less a written notice, "Out of Order," be posted in a conspicuous place at such crossing, whereby such traveler will be warned of any danger in passing over said crossing, and that the failure to post such notice shall not bar any action for injuries to person or property, or for death caused at such crossing because of the failure of the person injured or killed to stop, look, and listen before passing over the crossing. Under P. L. 1909, p. 137, a person approaching a railroad crossing, where there was a crossing bell which was out of order, was not guilty of contributory negligence in not looking or listening; no "out of order" notice being posted. Appeal from Supreme Court. Action by Joseph Snuffin, administratrix, etc., against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed. Bourgeois & Coulomb, of Atlantic City, for appellant. Albert S. Woodruff, of Camden, for respondent. Therefore, under the conditions which confronted the deceased, at the crossing, he was relieved from any obligation "to stop, look, and listen" before starting to cross the railroad tracks. He had a right under the statute to rely on the warning of the crossing bell for his safety, and, in the absence of the notice "out of order," was entitled to assume that it was safe for him to cross the tracks. In view of the statutory declaration the argument, of counsel of appellant, that if the deceased had looked he could have seen the train approaching before going onto the track, and that his fail KALISCH, J. The plaintiff's intestate, riding on a motorcycle, was struck and killed on the 20th day of August, 1918, by a locomotive engine of the defendant rail-ure to look was contributory to his injury road company, while he, the decedent, was propelling his vehicle across the railroad tracks of the defendant's railroad, at a public crossing, at Atco. and death, and that therefore the plaintiff's right of action was barred, is obviously without legal force. The judgment is affirmed, with costs. (93 N. J. Law, 203) FAGAN v. CENTRAL R. CO. OF NEW JERSEY. The negligence charged, in the plaintiff's complaint, as the cause of the accident which resulted in the decedent's death, was the failure of the crossing bell, installed by the railroad company at that point, to ring so as to give timely warning of an approaching train, and further that the crossing bell (Court of Errors and Appeals of New Jersey. was out of order. The appellant's sole ground of appeal from the judgment entered upon the verdict of a jury in favor of the plaintiff and against the former is stated in the record, thus: "Because the court refused to direct a verdict for the defendant for the reason that deceased was guilty of contributory negligence in riding his motorcycle upon the crossing immediately in front of defendant's oncoming train." On this branch of the case there was evidence that warranted the jury in finding that the crossing bell did not ring, and that the bell was out of order, and that there was June 20, 1919.) (Syllabus by the Court.) EVIDENCE 165(1)—TRIAL 272-RELEASE TION. Secondary evidence of the contents of a written release is admissible, and where a case is tried and proof offered and admitted of the contents of a release which releases the defendant from all claim, without any objection, and the production of the release is not required by mitted by both parties upon the theory that the the plaintiff, the releasor, and the cause is subcontents of the release was proven as part of the defense, an instruction to the jury that be cause of the nonproduction of the release there |