Y. 108, 57 N. E. 292; Mearns v. Central R. R. of N. J., 139 Fed. 543, 71 C. C. A. 331; Hooker v. Blair, 189 Mich. 278, 155 N. W. 364.

[2] In the case at bar the plaintiff was in no unusual situation. She was in no wise in terfered with, and, as we shall presently show, nothing was done or said by the trainmen to invite or direct her to step from the moving train.

The plaintiff testified that, when the train "slowed down as it came into Park Place station," an employé on the car called out "Park Place, last stop, Newark"; that thereupon she arose, walked to the front of the car, following a passenger ahead of her, found the door open, and stepped off, and as she stepped "felt" that the car was moving. We think it was the duty of plaintiff to use reasonable care to ascertain that the train-once in motion-had come to a standstill before she stepped off. This she did not do. Her failure to thus inform herself was the proximate cause of the accident. She walked to the front of the car when the station was called out. There was nothing unusual in this. Nothing was done or said to lead the trainmen to suppose that she did not understand the situation, or that she was mistaken about the train coming to a stand, or that she was about to step off. Ordinarily passengers have no difficulty in determining whether a train has stopped. She followed the man ahead of her and stepped off, apparently taking it for granted that the train had stopped, but making no effort by observation or otherwise to ascertain whether it had or not, as she might easily have done.

The action of the trainman in calling out "Park Place, last stop, Newark," and opening the door as the train was slowing up in the station, was not an invitation for the plaintiff to alight before the train stopped.

said that the door was then in. She proceeded down two steps and to the ground, thinking, as she testified, that the car was at a stop. The trial court ruled that the plaintiff has as good an opportunity as the conductor to know that the car was moving, and that the conductor was under no duty to caution or warn her. A verdict was directed in favor of the defendant, which was affirmed on appeal. At page 86 of 226 Mass., at page 242 of 115 N. E., the court said:

the motorman was negligent because he opened "The main contention of the plaintiff is that the door before the car had come to a full stop. We should be slow to say, in these days of rapid transit, that the mere opening of a door before the car comes to a full stop, not done in violation of a rule of the defendant, could be considered evidence of negligence. See Hannon v. Boston Elevated Railway, 182 Mass. 425 [65 N. E. 809]. But, aside from that, on the facts disclosed, the opening of the door and the announcement of the name of the next stop plainly did not warrant a finding that the plaintiff was invited to alight from a moving car. England v. Boston & Maine Railroad, 153 Mass. 490, [27 N. E. 1]."

In the Hannon Case, 182 Mass. 425, 65 N. E. 809, the court said, at page 427 of 182 Mass., at page 809 of 65 N. E:

"A little time must be consumed in unfastenTo hold that the ing and opening the doors. the process until the cars come to a complete guard outside shall not be permitted to begin standstill would impose an unnecessary and unreasonable restriction, whose effect would delay passengers and prolong the running time of the trains. Ordinarily there is no reason to anticipate danger from beginning to get ready the places of exit while the train is in the last part of its movement before coming to a full stop."

In England v. Boston & Maine R. R., 153 Mass. 490, 27 N. E. 1, a woman was a passenger upon a railroad train in the evening, when the brakeman opened and fastened back the door of the car and called out the name of her station. She passed out upon platform, and receiving no warning from the brakeman, stepped off while the train was still in motion, and was injured. A verdict was directed. in favor of the defendant, and, on appeal, it was affirmed. The court, at page 492 of 153 Mass., at page 1 of 27 N. E., said:

(90 N. J. Eq. 580)

In re SAGE. (No. 38.)

our jurisprudence this landmark of early legislative construction was subjected to judicial review at the hands of the learned

WILLS

June 20, 1919.)

(Syllabus by the Court.)

133-EXECUTION-PUBLICATION.

The deceased drew her will and took it to a neighboring store, where she requested two witnesses to sign it. They did so without seeing the will or the signature of the deceased in any part of it, and without any declaration by her that she had signed it and that it was her last

will.

Held, that the document lacked the essential formality of publication, and was properly denied probate.

Appeal from Prerogative Court.

Proceeding by surviving husband of Jessie Gordon Sage, deceased, for the probate of her will. Appeal from decree in the orphans' court and in the Prerogative Court (107 Atl. 151), denying probate. Affirmed.

Condict, Condict & Boardman, of Jersey City, for appellant.

Ziegener & Lane, of Jersey City, for respondent.

MINTURN, J. Sage, deceased, had drawn her own will, she took it to a neighboring store, and requested two people there to sign it as witnesses, which they did, after which she folded up the document and without any of the usual formalities attendant upon such an event she went away, thereafter died, and upon the production of the document at the surrogates' office by the husband a caveat was filed by him to its probate.

After Mrs. Jessie Gordon

The question involved is whether the document is a last will and testament under the requirements of our statute. Both the orphans' court and the Prerogative Court held that it was not, and in that conclusion we

concur.

The statute concerning wills (4 Comp. St. 1910, p. 5861, §§ 1-37) is unique in the fact that it stands as one of the few legislative products of an early generation which neither the reforming temper of advancing progress, nor the iconoclastic hand of an allpervading cacoethes for improvement, has seen proper to disturb.

And so at a comparatively early period in

sions he said:

"Four things are required: First, that the will shall be in writing; secondly, that it shall be signed by the testator; thirdly, that such signature shall be made by the testator, or the making thereof acknowledged by him in the shall be declared to be his last will in the prespresence of two witnesses; fourthly, that it ence of these witnesses.

exist. They are not in the alternative.” "Each and every one of these requisites must In re McElwaine, 18 N. J. Eq. 499, 501.

It is evident from the testimony of the subscribing witnesses to this document that the deceased overlooked the third requisite above described in the execution of what she doubtless intended to be her last will. This is what happened, as related by one of the

witnesses:

"She came and asked me whether we would sign her will, which she had folded up, and we saw nothing at all, except where we could sign it. Then we signed it and she seemed to be happy and put it back in her bag.

"Did she say anything else at all to you about it? No, sir.

"Or to Mr. De Witt in your hearing about the paper? No, sir.

"Have you stated everything that she said about the paper which you heard at that time?

Yes, sir."

Both witnesses testified that they saw no other portion of the will; that the deceased did not sign anything in their presence; that they did not see her name written in any part of the will, nor did she show them her name upon the document, nor did she state that she had signed it, nor was there any proof that her name was written in the will at the time.

Cases might be multiplied to evince the legal incompleteness of this document, as a will, without some adequate proof of its signing and publication as such by the testatrix.

It must suffice to say that in that important particular it lacks an essential statutory ingredient to which, under the rule to which we have adverted, every document purporting to be the last will of a testator must conform, in order to be established and proclaimed as such by the courts having jurisdiction of the subject.

The decree appealed from will be affirmed.

(93 N. J. Law, 215)

OF PHILADELPHIA, PA. (No. 29.)

(Court of Errors and Appeals of New Jersey.

June 20, 1919.)

(Syllabus by the Court.)

123(4)

1. INSURANCE 612(2)—STATUTES -SUBJECT AND TITLE INDEMNITY BOND "OPERATION."

A policy of accident insurance was filed with the municipality, by a jitney driver, as a condition precedent to the granting of his license by the city.

Thereafter his bus collided with the plaintiff's automobile, from which accident plaintiff suffered personal injuries for which in a suit instituted against the bus owner she recovered damages.

She then brought this suit against the insurer upon the policy of insurance.

Held: (1) That the act entitled "An act concerning autobusses, commonly called jitneys, and their operation in cities" (P. L. 1916, p. 283), was not unconstitutional, in that its title by the use of the word "operation" fairly comprehended the subject-matter of jitney insurance, as indemnity and protection to the traveling public, for whose benefit the policy was issued and filed. (2) That since the insurance policy expressly provided for the payment of such indemnity to an injured third party, the omissions of the insured to comply with certain details thereof, in case of accident, such as notice of the accident, etc., could not affect the right of the injured party to recover upon the same for damages, adjudicated in a suit at law between the insured and the injured third party, as a basis for the suit upon the policy to recover the amount so adjudicated.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Operation.]

(Additional Syllabus by Editorial Staff.) 2. INSURANCE

615-OPERATION OF JITNEY

BUSSES-ACCIDENT INSURANCE.

Failure to serve summons in original action

at law against proprietor of jitney busses for personal injury from their operation upon city's fiscal officer made by P. L. 1916, p. 283, the proprietor's agent for that purpose, does not render injured party's subsequent action on proprietor's indemnity bond for adjudicated damages invalid, as such omission could not inure to the insurer's advantage after insured had litigated the merits.

Appeal from Supreme Court.

Arthur B. Seymour, of Orange, for appellee.

MINTURN, J. [1] Andrew Wanzke, as a condition precedent to operating his jitney bus upon the streets of Newark, and for the

purpose of obtaining a license from the municipal authorities for the purpose, filed with the chief fiscal officer of the city a policy of accident insurance issued by the defendant company in the sum of $5,000.

The policy was issued under the provisions of an act of the Legislature (P. L. 1916, p. 283) entitled "An act concerning autobusses, commonly called jitneys, and their operation in cities." The act provides inter alia that

Such a policy "shall provide for the payment of any final judgment recovered by any person on account of the ownership, maintenance and use of such autobus or any fault in respect thereto and shall be for the benefit of every person suffering loss, damage or injury."

The policy of insurance provided, inter alia:

"Notwithstanding anything herein contained to the contrary, this company will pay any final judgment within the limits of this policy as stipulated in item four, recovered by any person or persons, on account of the ownership, maintenance and use of the automobile described herein, or any fault in respect thereto; and it is further understood that this contract shall be for the benefit of every person suffering loss, damage or injury as described in this contract, or as described in the terms of an act entitled 'An act concerning autobusses, commonly called jitneys,' etc., already referred to."

In this situation the plaintiff was personally injured as a result of a collision between an automobile which she was driving along Elizabeth avenue, in Newark, with the jitney bus of the insured, and recovered a judgment against him for the resulting damage, in the Orange district court.

This suit was instituted against the defendant as insurer, upon the policy referred to, to recover the amount of the plaintiff's judgment against the insured.

Under our statute such a litigation may be prosecuted in the name of the third party for whose benefit the undertaking was given.

If, as has been tersely and happily expressed by Mr. Justice Garrison in an opinion

in this court in Moore v. Burdett, 62 N. J. Law, 163, 40 Atl. 631, the title of a legislative act, under our constitutional mandate, is to serve the practical purpose of "a label not an index," and that the product of the act "may be as diverse as the object requires," it is difficult in this instance to discern a reasonable basis for the contention thus interposed. The Legislature was dealing with the operation of jitney busses upon city streets, and provided that as a condition precedent to their operation such a policy of insurance as that sub judice should be filed for the public protection, against injuries resulting from such public use. Manifestly such a legislative requirement is appropriately and logically germane to the legislative purpose, and is in no wise extraneous or foreign to the general subject-matter of the public policy inherent in the act, which at the time of its enactment sought adequate and practical regulation and protection against the general indiscriminate and irresponsible exercise of a quasi public function, incident to a common carrier upon city streets. That regulation of indiscriminate operation, under such circumstances, necessarily involved adequate protection by pecuniary indemnity to the traveling public, who by reason of negligent operation might be damaged, would seem to be an incidental and necessary component factor of any device or system, which had as its prime objective the service and safety of the traveling public.

In expressing this purpose, the use of the generic word "operation," ipso facto, comprehends a situation comporting with safe and satisfactory operation, with all the incidental details of administration, which in legislative discretion may be necessary to that end.

Legislation of the same comprehensive character, containing in its title no expression of legislative incidental detail, has frequently received the imprimatur of this court as a compliance with the requirement of the constitutional mandate. Moore v. Burdett, supra; Allen v. Board of Education, 81 N. J. Law, 135, 79 Atl. 101; Newark v. Mt. Pleasant Co., 58 N. J. Law, 168, 33 Atl. 396; Easton & Amboy R. R. Co. v. Central R. Co., 52 N. J. Law, 267, 19 Atl. 722.

It is insisted that the right of the plaintiff to sue is derivative in character, and depends entirely upon the rights of the insured under the terms of the policy. The application of this argument is directed to the fact that since the insured failed to give notice of the accident, and of the pendency of the suit to the insurer, as required by him, by

the provisions of the policy, the right of the plaintiff in this case to recover is to be determined by the status thus acquired by the insured, which in effect constitutes a breach of the agreement.

The contention, it is obvious, ignores the express provision of the policy already quoted, which manifestly was contemplated to meet the situation here presented; for it provides "that notwithstanding anything herein contained to the contrary, this company will pay any final judgment within the limits of this policy, recovered by any person or persons on account of the ownership, maintenance and use of automobiles," etc., and the further provision that "this contract shall be for the benefit of every person suffering loss, damage or injury," etc.

[2] It is also urged that because of the failure to serve the summons in the original litigation, upon the fiscal officer of the city, who is constituted by the statute the agent of the owner of the car, for that purpose, this proceeding is invalid. Quite manifestly the fiscal officer in statutory contemplation is constituted the agent of the insured, and not of the insurer, and the omission of the plaintiff, in that respect, cannot inure to the advantage of the insurer, after the insured, as in this case, submitted himself to the jurisdiction and litigated the merits of the case. As between the defendant company and the plaintiff, the defendant's liability is thereby fixed and determined.

There is no statutory or contractual requirement that the fiscal officer shall accept substituted service of the summons, or be deemed the agent of the insurer for the purpose of this suit. That provision has reference only to the original action, which determines the liability and the amount thereof, and can be invoked only in the first action as a basis of defense.

It is finally contended that neither in law nor equity can the defendant be burdened with an imposition not contemplated by the terms of the policy of insurance. While this proposition may be true in the abstract, its relevancy to the situation at bar is not apparent; for if the parties to the instrument did not contemplate an exigency, productive of a practical indemnification of a third party, for damages concededly suffered at the hands of the insured, it is difficult to apprehend the language of the statute, or the public policy underlying its provisions, or the reasons prompting the execution and delivery by the parties of the instrument of indemnity, upon which this suit is predicated. The judgment will be affirmed.