Felton, to review a statement of the result of an election. Affirmed.

thereof, which certificate shall take the place of the certificate originally issued by the can

Lindlay M. Garrison and William J. Kraft, for prosecutor. Henry M. Snyder, for defendant.

DIXON, J. This certiorari brings up for review the statement of the result of a recount of the ballots for treasurer of the city of Camden cast in the Fifth, Sixth, Seventh, and Eighth wards of that city, which recount was ordered by one of the justices of this court under section 13 of a supplement to the election act, approved March 25, 1895 (2 Gen. St. p. 1367, par. 369). The objection urged is that in the Fifth precinct of the Sixth ward the board of election counted 185 ballots, instead of stopping when 150 had been counted. The circumstances giving rise to this objection are that on the poll book of that precinct, after the name of the 150th voter, the following is written: "Number of votes polled, 150. William P. Clark, Judge. Jos. S. Davis. Harry F. Redding. H. I. Hoovey." Then are entered the names of 35 other persons as voters, numbered from 151 to 185, but no further certificate. The prosecutor claims that, under section 42 of the election act (2 Gen. St. p. 1301), the writing above mentioned showed that the whole number of the names of the persons whose votes had been received during the election" was one hundred and fifty; and that under section 45 the board of election, after canvassing and estimating that number of ballots, was bound to deem the ballots remaining in the box null and of no effect. This claim is unfounded. The writing did not purport to certify the whole number of votes received during the election, but only the number received when that entry was made. poll book contained the names of 185 persons who seemed to have voted at the election, and did not exhibit any legal evidence that the whole number of voters was less. It was therefore the plain duty of the board to count that number of ballots. The testimony taken in this cause shows that the writing in question was made at the noon recess, and that afterwards, before the polls closed, 35 other ballots were legally cast, so that there is no doubt of the substantial propriety of counting the full number of ballots. The absence of the certificate prescribed by section 42 is not made by the statute a ground for rejecting the ballots lawfully cast, and of course will not be adjudged so by the courts. The statement of the recount is affirmed, with costs to the defendant.

The

In view of the certificate made in this case by the justice who ordered the recount, it may not be out of place to call attention to the requirement of the statute with regard to such certificates. Paragraph 369, above mentioned, directs that "on the conclusion of such recount the said justice shall certify the result

vassing board, as indicated by section 65 of the election act, is to exhibit the whole number of votes given for each person for each office at the election, and thus shows the persons elected by the plurality of votes. The cer tificate of a justice cannot take the place of this certificate, unless, with regard to the office for which the recount was made, it be equally full and explicit. Of course, when, as in the present case, the recount is in only part of the precincts, the justice cannot, from the recount alone, gather the information needed for such a certificate, but the other necessary information can be obtained from the original certificate of the canvassing board, which is on file in the proper public office. From the data there contained, and the result of the recount, the justice should make a certificate capable of taking the place of the original certificate, as prima facie evidence of title to the office in dispute.

1. Under the act of March 1, 1888 (3 Gen. St. p. 3425), and section 6 of the act of March 19, 1891 (3 Gen. St. p. 3345), a tax for personal property may be levied against a person at his residence, and another tax may be assessed against him for tangible personal property used by him in connection with his business at the place where his business is carried on, although the place of business and the residence are in the same taxing district.

2. In Jersey City the city collector is "the officer for the collection of taxes," within the meaning of the act of February 26, 1895 (3 Gen. St. p. 3451).

3. Tax warrants may be executed on goods and chattels other than those for which the tax was assessed.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of John Mullins and Patrick Patrick McArdle, against the mayor and aldermen of city of Jersey City, to review proceedings levying taxes for personal property against the prosecutors, and the warrants issued for the collection of the same. Proceedings affirmed.

Argued November term, 1897, before VAN SYCKEL, COLLINS, and DIXON, JJ.

J. B. Vredenburgh, for prosecutors.

DIXON, J. The certiorari in this case brings up the taxes for personal property levied against the prosecutors severally, and the warrants issued for the collection of the same. The joining of these prosecutors in one writ is irregular, as neither has the least interest in the proceedings against the other. But, waiving that, we find no ille

gality in the proceedings under review. The case shows that a tax on personal property was levied against each prosecutor at his residence, and another tax was assessed against him for tangible personal property used by him in connection with his business at the place where his business was carried

This is in accordance with the act of March 1, 1888 (3 Gen. St. p. 3425), and section 6 of the act of March 19, 1891 (3 Gen. St. p. 3345). The fact that the residence and place of business are in the same taxing district does not interfere with the operation of these laws. In such a case a single assessment might not be invalid, but clearly it is not enjoined. The tax warrants were issued agreeably to the directions of the act of February 26, 1895 (3 Gen. St. p. 3451), viz. by the city comptroller to the city collector, who, in Jersey City, is "the officer for the collection of taxes." In executing such a warrant the city collector is not confined to the property for which the tax is assessed. The warrant commands him to make the tax "of the goods and chattels of the person named therein" as owing the tax, and the necessary implication is that he must obey that order. The proceedings are affirmed, with costs.

KEY V. PAUL (two cases). (Supreme Court of New Jersey. Nov. 22, 1897.) JUDGE-ORDERS IN CHAMBERS-REVIEW BY COURT. 1. Orders made by a single judge at chambers, even though made under the express authority of a statute, are generally subject to review by the court itself.

2. But such orders, made in matters of discretion, not involving the substantial rights of parties, will not generally be reviewed by the court.

3. The court will not review an order made by a single judge refusing to strike out a plea as frivolous.

(Syllabus by the Court.)

Actions by John Cooper Key against Sarah E. Paul, and by Charles Key against Sarah E. Paul. On motion for an order vacating an order of a justice to strike out pleas as frivolous. Denied.

Argued November term, 1897, before VAN SYCKEL, COLLINS, and DIXON, JJ.

John J. Crandall, for the motion. Watkins, opposed.

David O.

DIXON, J. During vacation the plaintiffs moved before Mr. Justice Ludlow for an order striking out the defendant's pleas as frivolous, under section 314 of the Practice Act (Gen. St. p. 2585). This motion being denied, a rule to that effect was entered, and the plaintiff's now move before the court for an order vacating the order of Mr. Justice Ludlow, and striking out the pleas as frivolous. The practice of moving in vacation before a single judge for orders incident to the progress of a cause is quite ancient, and is

supported at common law because of the convenience thus afforded to suitors, and of the relief to the court. Rex v. Almon, Wilm. Op. 264. In New Jersey it has, besides, the sanction of the legislature. Such orders are, however, generally subject to review by the court itself (Peterson v. Davis, 6 C. B. 235; Darrington v. Price, Id. 309; Thompson v. Becke, 4 Q. B. 759; In re Stretton, 14 Mees. & W. 806; Pike v. Davis, 6 Mees. & W. 546), even though the judge acts by the express authority of a statute (Robinson v. Burbidge, 9 C. B. 289; Chilton v. Carrington, 15 C. B. 730; Owens v. Woosman, L. R. 3 Q. B. 469). But when the motion appeals merely to the discretion of the judge, and does not involve the substantial rights of the parties, the court will usually not review his action. Rex v. Archbishop of York, 1 Adol. & E. 394. The application to strike out a plea as frivolous is of this discretionary character. There are certain legal rules, according to which it can be decided whether a plea is bad or not; but whether a plea is so bad as to be frivolous is a question which often cannot be brought to the test of any definite rule of law, but must be determined by the judge in each case according to his view of the degree in which the plea lacks conformity to rule. Nor is any substantial right of the plaintiff prejudiced by a refusal to strike out a plea as frivolous. He may still have the legal validity of the plea adjudged on demurrer. Our conclusion is that the motions should be denied.

STATE (POOLE, Prosecutor) v. ENGELKE. (Supreme Court of New Jersey. Nov. 8, 1897.) TENANT AT SUFFERANCE-USE AND OCCUPATIONBUILDINGS BURNED.

1. A tenant for a term certain, holding over after the expiration of his term without the assent of his landlord, becomes a tenant at sufferance.

2. By force of the statute (2 Gen. St. p. 1915, § 3), a landlord may recover from a tenant at sufferance a reasonable satisfaction for the use and occupation of the premises.

3. The rent stipulated for the term expired is not the exclusive measure of the reasonable satisfaction which the landlord is to recover from such a tenant at sufferance.

4. The supplement to the act concerning landlords and tenants (2 Gen. St. p. 1923, par. 35), which relates to buildings on leased premises damaged by fire, does not apply to a tenancy at sufferance.

(Syllabus by the Court.)

Certiorari to court of common pleas, Union county; McCormick, Judge.

Certiorari by the state, on the prosecution of Henry D. Poole, against Minnie C. Engelke, to renew judgment for plaintiff. Judgment reversed.

The following facts were found by the court of common pleas:

"The respondent, Henry D. Poole, leased to the appellant, Minnie C. Engelke, the store and premises No. 95 Broad street, in Eliza

betb. The lease expired on the 1st of April, 1896. The appellant then rented the store and premises from Poole for the month of April, and towards the end of April rented it for the month of May, 1896. The facts are that it was agreed between them that the tenant would vacate the premises on the 1st day of June, 1896. The circumstances of the letting plainly show that it was a parol lease for the month of May, 1896. On the 30th day of May, and during the period of the lease, a fire occurred in the store, by which it was rendered partially unfit for the carrying on of the business in which the defendant was then and there engaged. Her stock was badly damaged, and she was compelled to suspend. She held over on the premises until the 15th day of June, 1896, without making any new, express agreement in reference to the hiring or rental of the premises. It was possible for the tenant to have vacated and removed her goods, damaged though they were, before the 2d of June. After the fire the insurance adjusters came to the store, and estimated the loss on her stock; and after they had completed their work, for a few days during the middle of the month of June, she sold goods over the counter, to the value of ten dollars, or thereabouts. The rent agreed upon between the landlord and tenant for the letting for May was sixty dollars. This was paid during May. The appellant remained in the store until the 15th day of June, 1896, when she vacated, without paying anything more. Poole brought an action against the appellant in the district court of the city of Elizabeth for the sum of sixty dollars. Trial was had in it, and the district court rendered judgment in favor of Poole, and against the appellant, for thirty dollars and costs. From this judgment the appellant appealed to the court of common pleas. The court of common pleas, on the facts above stated, rendered judgment against the respondent, and in favor of the appellant. I hereby certify that the foregoing is a true state of the facts found by me in the above-entitled cause. Dated February 15, 1897. T. F. McCormick, Judge of Union County Common Pleas."

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

Frank H. Dunn, for plaintiff. John F. Brown, for defendant.

DIXON, J. Upon the facts stated in the certificate of the court of common pleas, it is evident that on the expiration of the tenant's May term she became a tenant at sufferance; and, as the landlord did not assent to the continuance of her possession while it lasted, she remained a tenant at sufferance until she left the premises on June 15th. Jackson v. Parkhurst, 5 Johns. 128; Den v. Adams, 12 N. J. Law, 99; Moore v. Moore, 41 N. J. Law, 515; Condon v. Barr, 47 N. J. Law, 113. It seems that, by the common law, while such a tenant was bound to ac

count for the profits of the land (2 Bl. Comm. 151), he was not liable to an action for rent (Flood v. Flood, 1 Allen, 217; Condon v. Barr, 47 N. J. Law, 113, 115; 1 Washb. Real Prop. 408). But, by the third section of our act concerning landlords and tenants (2 Gen. St. p. 1915), a landlord may, in such a case (Lanning v. Howell, 2 N. J. Law, 256; Chambers v. Ross, 25 N. J. Law, 293), recover from the tenant "a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by defendant." When, in an action for use and occupation, it appears that there was any parol demise or any agreement (not being by deed) whereon a certain rent was reserved, that rent becomes the exclusive measure of the "reasonable satisfaction" to be recovered. Perrine v. Hankinson, 11 N. J. Law, 181, 184; Holmes v. Stockton, 26 N. J. Law, 93. But of course this rule cannot be applied unless the demise or agreement covers the period of occupation. When the tenant's possession is outside of the demise or agreement of the parties, the rent fixed for a previous term can be only a circumstance worthy of more or less consideration in arriving at the reasonable satisfaction which the statute gives; and if, as in the present case, the premises have been materially damaged in comparison with the condition for which the rent was stipulated, that rent is of slight value as a criterion. Our conclusion, therefore, is that the court of common pleas should have found for the plaintiff such sum as would be a reasonable satisfaction to him for the tenant's use and occupation of the premises as they were between the 1st and 15th days of June.

In the brief of counsel this case is discussed as if it were affected by the supplement to the act concerning landlords and tenants, approved March 5, 1874 (2 Gen. St. p. 1923). But this statute is applicable only when the premises are leased. Neither in letter nor in spirit does it extend to a tenancy which is not in any respect subject to the agreement of the parties. Whether, if the landlord had assented to the tenant's holding over, so as to convert her into a tenant from month to month at the previous rent, the rent would, by force of the statute, have ceased upon the landlord's failure to repair as speedily as possible the damage done by fire in the prior term, we need not now decide. The judgment below is reversed, and the cause remitted to the common pleas for a new trial.

the architect shall be final and conclusive, subject, however, to the implied condition that the decision shall be an honest one.

2. Construing the contract clause and the specification clause together in this case, the conclusiveness of the architect's certificate extends only to the plans, the style, the measurements, and the way in which the building shall be constructed. The workmanship and materials with respect to their character and quality must, under the specification clause, have the approval and acceptance of the owner and architect.

3. Whether, in the exercise of a fair and reasonable judgment, the owner and architect should approve and accept, is a question for the jury. 4. By paying a part of the second installment before it was due under the contract, the owner discharged the surety of the contractor from all obligation.

5. Under the contract set forth in the certified case, if, on account of the default of the contractor, the owner completed the contract work, he had a right of recourse to the surety for any excess of reasonable cost over the contract price.

(Syllabus by the Court.)

Case certified from circuit court, Passaic county, for advisory opinion; before Justice Dixon.

Action by George T. Welch against the Hubschmitt Building & Woodworking Company and Aaron Kievitt on a contractor's bond, in which a nonsuit was ordered, and a rule was allowed that defendant show cause why a new trial should not be granted. Case certified to the supreme court.

The following is the certificate of the trial judge:

"The above-stated cause came on to be tried on Tuesday, the 12th day of January, 1897, before his honor, Jonathan Dixon, judge of said circuit court, and a jury impaneled and sworn for that purpose. The suit was brought upon a bond, a copy of which is found hereto attached in Schedule A. The condition of said bond is that the said Hubschmitt Building and Woodworking Company shall well and truly perform all and every of the covenants and agreements mentioned in a certain building contract, according to the true intent and meaning thereof, made on the same day by said company with the plaintiff, a copy of which contract is hereto attached, and is found in Schedule B. A part of the specifications put in evidence in said trial, and pertinent to the question herein certified, read as follows: "The entire work to be done and furnished in every part in a good, substantial, and workmanlike manner, according to the accompanying drawings and these specifications, to the full extent and meaning of the same, and the entire satisfaction, approval, and acceptance of the owner and architect.' This quotation from the specifications is repeated in Schedule C.

"Schedule A.

"Know all men by these presents that Hubschmitt's Building and Woodworking Co., a corporation incorporated under the laws of the state of New Jersey, and Aaron

Kievitt, of the city of Passaic, in the county of Passaic, and state of New Jersey, are held and firmly bound unto George T. Welch, of the city of Passaic, in the county of Passaic and state of New Jersey, in the sum of thousand dollars lawful money of the United States of America, to be paid to the said George T. Welch, or to his certain attorney, executors, administrators, or assigns; to which payment well and truly to be made they bind themselves, their heirs, executors, and administrators, and successors, jointly and severally, firmly by these presents. Sealed with their seals, and dated the thirtieth day of April, in the year of our Lord one thousand eight hundred and ninety-five. Whereas, Whereas, the above-bounden Hubschmitt Building and Woodworking Co. has entered into an agreement of even date with these presents with the said George T. Welch, to do all the carpenter work in a dwelling house, and furnish materials for same: Now, therefore, the condition of this obligation is such that, if the said Hubschmitt's Building and Woodworking Co. shall well and truly perform all and every of the covenants and agreements mentioned in said agreement according to the true intent and meaning thereof, then this obligation to be and remain in full force and virtue and effect. Hubschmitt B. & W. W. Co., Adam Hubschmitt, Treas. [L. S.] Aaron Kievitt. [L. S.] "Signed, sealed, and delivered in the presence of A. D. Sullivan.'

"Schedule B.

"Articles of agreement, made the thirtieth day of April, one thousand eight hundred and ninety-five, between George T. Welch, of the city of Passaic, county of Passaic, and state of New Jersey, of the first part, and Hubschmitt's Building and Woodworking Company, a corporation incorporated under the laws of the state of New Jersey, of the city of Passaic, county of Passaic, and state of New Jersey, of the second part, witnesseth: First. The said party of the second part does hereby for itself, its successors, covenant, promise, and agree, to and with the said party of the first part, his executors, administrators, or assigns, that it, said party of the second part, its successors, shall and will, for the consideration hereinafter mentioned, on or before the first day of September, 1895, well and sufficiently erect and finish the new building, all the carpenter work of every kind and description in the dwelling house to be erected by the said party of the first part at the corner of Passaic and Paulison avenues in the city of Passaic, agreeably to the drawings and specifications made by Herman Fritz, architect, and signed by the said parties within the time aforesaid, in a good. workmanlike, and substantial manner, under the direction of the said Herman Fritz, to be testified by a writing or certificate under the hand of the said Herman Fritz, and also shall and will find and provide such good, proper, and sufficient materials of all kinds

whatsoever as shall be proper and sufficient for the completing and finishing all the said carpenter work and other works of the said building mentioned in the carpenters' specification, for the sum of thirty-two hundred and twenty dollars. And the said party of the first part does hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said party of the second part, its successors, that he, the said party of the first part, his executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part as specified, well and truly pay or cause to be paid unto the said party of the second part, its successors or assigns, the sum of thirty-two hundred and twenty dollars, lawful money of the United States of America, in manner following: First payment ($550) to be paid when the house is framed, raised, sheathed, and rafters put up. Second payment ($785) to be paid when the house is inclosed, verandas finished, excepting outside steps, and the blinds hung. Third payment ($400) to be paid when the house is ready for mason. Fourth payment ($800) to be paid when the standing trim is on, doors and sash hung, stairs completed, cellar work finished, and floors laid, excepting the floors to receive wax finish. Fifth and last payment ($685) to be paid when the house is all completed, and accepted by the owner and architect: provided, that in each of the said cases a certificate shall be obtained and signed by the said Herman Fritz. And it is hereby further agreed by and between the said parties: First. The specifications and the drawings are intended to co-operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intentions of the said drawings and specifications, without any extra charge whatsoever. Secondly. The contractor, at its own proper costs and charges, to provide all manner of materials and labor, scaffolding, implements, molds, models, and cartage of every description for the due performance of the several erections. Third. Should the owner at any time during the progress of said building request any alterations, deviations, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation. Fourth. Should the contractor, at any time during the progress of said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have power to provide materials and workmen, after three days' notice, in writing, being given, to finish the said works, and the expense shall be deducted

Fifth.

from the amount of the contract. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the said Herman Fritz, and his decision shall be final and conclusive; but, should any dispute arise respecting the true value of the extra work, or of the works omitted, the same shall be valued by two competent persons, one employed by the owner, and the other by the contractor, and those two shall have power to name an umpire, whose decision shall be binding on all parties. Sixth. The owner shall not in any manner be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof, respectively, or for any of the materials or other things used and employed in finishing and completing the same. Seventh. No alterations or extra work shall be done without a written order from the architects, and an express agreement in writing as to the cost. In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year above written. Geo. T. Welch. [L. S.] Hubschmitt B. & W. W. Co., Adam Hubschmitt, Treas. [L. S.] "Signed, sealed, and delivered in the presence of Herman Fritz.'

"Schedule C.

The follow

"Extracts from Specifications. ing specifications apply to each individual contractor that may contract in any branch of the work: "The specifications are intended to embrace all of the labor and materials necessary in the construction and completion of the building in all its parts, the whole to be comprised within any contract or contracts that may be made for the same. The entire work to be constructed and finished in a good, substantial, and workmanlike manner, according to the accompanying drawings and these specifications, to the full intent and meaning of the same, and to the entire approval and acceptance of the architect. Each contractor is to provide all materials and labor necessary for the completion and substantial execution of everything described. Work shown in part on drawings to be extended and completed, same as if it were drawn out in full.'

"On the trial a nonsuit was ordered, and afterwards a rule was allowed that the defendant show cause why a new trial should not be granted. For the proper determination of that rule a legal response to the questions hereinafter stated is necessary. The questions of law arising in the foregoing cause, and reserved for review, are the following, viz.: (1) Whether the decisions of the architect made during the progress of the work, that any portions of the workman. ship or materials were not according to the drawings and specifications, are final and conclusive. (2) Whether, by paying part of the second installment before it was due,