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V. Greene, Adm'r, 31 N. J. Law, 570, where the will which was construed provided as follows:

"I give and bequeath unto my sister Martha the interest of $1,000 * * *for her own private use, during her natural life; and after her decease I give and bequeath the said $1,000 to her two daughters, namely, Deborah and Sarah, equally to be divided."

named." If this is not so, then the testator dies intestate. If there is no one in esse to take the gift over, then the legacy is not divested by the dying of the legatee in the lifetime of "the person named." Or, stated in another way, if, as in the will of this testator properly construed, there is no gift over on the death of the legatee during the lifetime Sarah died before the testator; Deborah of "the person named," then there is no disurvived the testator, but died in the life- vesting of the legacy, and it goes to the pertime of her mother. The question for deter-sonal representative of the legatee, either his mination was whether the legacy to Deborah executor or administrator, to be distributed vested at the death of the testator or whether under his will or to his next of kin. Thomit depended on the contingency of her surviv-as' Ex'r v. Anderson's Adm'r, 21 N. J. Eq. 22. ing her mother. Chancellor Green, who wrote the opinion in this court, says:

"It is a well-settled rule of construction that a gift of a legacy 'at,' or 'when,' or 'after' a given event occurs vests only upon the happening of the event. Apart from the context, the gift to the nieces of the testator after the death of their mother would not vest until their mother's death, and would depend upon the contingency of their surviving her. Where the time is annexed, not to the payment merely, but to the gift itself, the legacy does not vest until the period arrives. On the other hand, it is an equally well-settled rule of construction that where an absolute property in a fund is bequeathed in fractional interests in succession, at periods which must arrive, the interests of the first and subsequent takers will vest together. * * Where it is apparent from the terms of the will that the future gift is postponed to let in some other interest, the gift is vested."

*

So, also, in Thomas, Ex'r, v. Anderson's Adm'r, 21 N. J. Eq. 22, it was held that:

"A gift of the interest of $12,000 to A. during life, and at her death, of the principal to B., is a vested legacy, and, if A. survives B., goes upon her death to B.'s representative."

See, also, Beatty's Adm'r v. Montgomery's Ex'r, 21 N. J. Eq. 324, and Post v. Herberts' Ex'rs, 27 N. J. Eq. 540.

We think, not only on the authority of the cases cited and by the application of the rule set out therein, but by the very language of the sixth paragraph of the will, that the testator's intent that his brothers and sister should take a vested interest is clear. In no other way can the words "the lawful child or children of any of them who may have died to take the share of their deceased parent" be given force, for, if the legacy was contingent and went to those who were the lawful heirs of the testator after the decease of his wife and niece, they would all necessarily be in esse at the time when the legacy vested.

In Beatty's Adm'r v. Montgomery's Ex'r, 21 N. J. Eq. 324, 327, Chancellor Zabriskie said: "If a legacy given to one at the death of a person named is given to another in case such legatee should die, this is held to refer to death in the life of the person at whose death it is given. Such legacy is held to vest at the death of the testator, subject to be divested on the happening of the event; that is, dying in the life of the person named."

But a legacy is divested only when other disposition is made of the subject of the legacy by the testator in the event of the death of the legatee during the life of "the person

The result is that the testator's residuary estate, with the exception of the 60 shares of the capital stock of the railroad company held for the benefit of the niece, should be immediately distributed in equal parts to the respective personal representatives of the testator's brothers and sister, to be finally distributed under their respective wills or to their respective next of kin, as the case may be.

The decree of the court below will be reversed, and a decree entered in accordance with the conclusions herein expressed.

(85 N. J. L. 432)

NEWARK PAVING CO. v. KLOTZ. (Supreme Court of New Jersey. Feb. 24, 1914.)

(Syllabus by the Court.)

1. RELEASE (§ 29*)-PARTIES-JOINT TORTFEASORS.

dent arising out of and in the course of his Where a workman is injured by an acciemployment, and a tort-feasor, other than his employer, is responsible therefor, the right to compensation under the act of 1911 (P. L. 1911, p. 134) is not lost by settlement with and a release of the tort-feasor.

[Ed. Note.-For other cases, see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*]

2. MASTER AND SERVANT (§ 2504, New, vol. 16
Key-No. Series)-WORKMEN'S COMPENSATION
ACT SUBROGATION-DAMAGES FROM TORT-
FEASOR.

The right to compensation under the Work-
men's Compensation Act of 1911 (P. L. 1911,
P. 134), as originally enacted, and the right to
recover damages of a tort-feasor, are of so
different a character that the employer has no
right by way of subrogation to the claim of the
workman against the tort-feasor. The amend-
ment of 1913 (P. L. 1913, p. 303) is not mere-
ly declaratory of the legislative intent under
the act of 1911.
3. MASTER AND SERVANT (§ 25034, New, vol. 16
Key-No. Series)-WORKMEN'S COMPENSATION

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Company and Hattie Klotz, administratrix. | lieu of wages and are to be received by the Finding for the administratrix, and the Pav- employé or his dependents in the same maning Company brings certiorari. Affirmed. The following statement of facts is taken from prosecutor's brief:

"Klotz was one of a gang of men employed by the respondent to wheel stone and cement to a concrete mixer at work on Elizabeth avenue on the repavement of that street. He went to his work at 7 o'clock in the morning, but, when he arrived there, it was found that, owing to the pipes of the concrete mixer having been frozen, no work could be done until this had been repaired. The men, therefore, could do nothing whatever, and about 7:40, and at least an hour before the mixer was fixed so as to permit the resumption of work, Mr. Klotz was struck-by a car of the public service corporation and

killed."

To this must be added the important fact that, at the time he was struck, Klotz was fixing up his wheelbarrow.

Prior to the trial in this case, the petitioner received $800 from the public service corporation, and released, by a release under seal, that corporation from liability.

Argued November
November term, 1913, before
SWAYZE and BERGEN, JJ.

McCarter & English, of Newark, for prosecutor. John V. Laddey, of Newark, for defendant.

SWAYZE, J. We think the evidence justified a finding that Klotz's death was due to an accident arising out of and in the course of his employment. The case is within the rule of Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458.

ner in which wages are ordinarily paid; that commutation is a departure from the normal method of payment to be allowed only under unusual circumstances and not for the purpose of enabling the injured employé or the dependents of a deceased employé to satisfy a debt or to make payment to physicians, lawyers, or other persons.

Although this enactment is later than the accident for which this suit is brought, it is an express legislative declaration of the intent of the act-an intent which might have been properly inferred from the provisions of the original act. If the statutory compensations were subject to deductions by reason of payments made by a third person, the. tort-feasor, to the person injured or to his dependents, in satisfaction of the liability for the tort, this object of the statute would be thwarted, and in effect the commutation to a lump sum would take place without any order of the court and at the will of the injured party or his representatives. If, on the other hand, the employer were allowed to recover of the tort-feasor by action in the name of the employé or his representative, he would be able to recover in advance of payments by him and at a time when the extent of his own liability could not be ascertained. These considerations suffice to show that the right to compensation under the statute and the right to recover damages of the tort-feasor are of so different a character that the rule of law appealed to by the prosecutor is inapplicable. The release, therefore, of the claim against the street railway could not be a bar to the right to compensation under the statute.

It is true this conclusion makes it possible for the employé to secure, under the act of 1911, double compensation. This was prob

as we think, the result of the language of the statute. The difficulty seems to be obviated by the amendment of 1913 (P. L. pp. 312, 313.)

[1, 2] The question of the effect of the release of the street railway company is more troublesome. The defendant appeals to the rule established in Weber v. Morris & E. R. R. Co., 35 N. J. Law, 409, 10 Am. Rep. 253, Id., 36 N. J. Law, 213, and in Monmouth County Fire Ins. Co. v. Hutchinson and another, 21 N. J. Law, 107. It is true that the present de-ably not the intent of the Legislature, though, fendant is not an insurer, but we are not prepared to say that that fact alone takes the case out of the reason of the rule as stated in the cases referred to, and by Chief Justice Shaw in the case on which they relied. Hart v. Western Railroad Corp., 13 Metc. (Mass.) 99, 46 Am. Dec. 719. We think, however, that the present case is not governed by that rule for the reason that to so hold would conflict with the intention of the act of 1911 (P. L. 1911, p. 134), under which this suit is brought. That act was meant to insure compensation to workmen not generally but by way of weekly payments in lieu of wages. It therefore partakes to some extent of the nature of a pension, and we have held that there must be specific findings of fact to warrant an order commuting the payments into a lump sum. New York Shipbuilding Co. v. Buchanan, 84 N. J. Law, 543, 87 Atl. 86. This object of the act is especially emphasized by the amendment of 1913 (P. L. p. 309), which declares that it is the intention that the compensation payments are in

It is argued that the amendment amounts to a legislative declaration of the asserted right of subrogation under the original act. The answer is twofold: (1) It does not purport to be a declaration of the meaning of the act of 1911, but an amendment of that act. (2) The employer is only released, when the employé recovers of the tort-feasor a sum equivalent to or greater than the total compensation payments for which the employer is liable, and the employer is only entitled to receive of the tort-feasor a sum equivalent to the amount of compensation payments which the employer has theretofore paid to the injured employé or his dependents. Neither provision is applicable to the present case.

[3] It is urged that the court erred in allowing compensation as in case of four children, when two of the four were only step

children. The evidence shows that the deceased supported the stepchildren and bought their clothes and shoes. We think this fact justified the judge in allowing for them as actual dependents. Mulhern v. McDavitt, 16 Gray (Mass.) 404. The amendment of 1913 (P. L. p. 305) removes all doubt on this point for cases arising since its passage, and we find nothing in the language of the act of 1911 to prevent us from adopting the same construction. The important words are "actual dependents." The word "children" may well be held to include dependent stepchildren.

The judgment is affirmed, with costs.

GUMMERE, C. J. The following are the material facts set out in the pleadings in this case: The government of the police force of the city of Hoboken is vested in the board of police commissioners of that city, under the provisions of the municipal charter; and that board has power to make such rules and regulations as it may deem proper for the regulation of the police department. In the exercise of that power the board adopted a manual of rules and regulations in which it was provided, among other things, that the police force should consist of "a chief of police, captains, a detective sergeant, sergeants, roundsmen, and such detectives, patrolmen, van drivers and chancemen" as the board should appoint; that there should be two police precincts in the city; that the force in each precinct should form a company; and that the officers of each company should consist of one captain, three sergeants, OF POLICE COMMISSIONERS. three roundsmen, together with the necessary Under Hoboken Charter, vesting in the number of patrolmen and detectives. This board of police commissioners the power to make such rules and regulations as it might manual was adopted in January, 1903, and deem proper, the board adopted a manual pro- under it Robert H. Bell and John Flattery viding that the police force should consist of were appointed captains; Bell being assigna chief of police, captains, a detective ser-ed by the chief of police to duty in the First geant, etc., and that there should be two police precincts in the city, the force in each precinct forming a company, the officers of which should consist of one captain, etc. Held, that there was no limitation in the manual as to the number of captains, and the board of police commissioners might, when advisable, create a third captain although there were only two districts.

(86 N. J. L. 1)

GUTHEIL v. NELSON. (Supreme Court of New Jersey. July 2, 1914.) 1. MUNICIPAL CORPORATIONS (8 184*)-POWER

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 482-486, 488-491; Dec. Dig. § 184.*]

2. MUNICIPAL CORPORATIONS (§ 184*)-POLICE

-POWER OF POLICE COMMISSIONERS. A police captain who is assigned to command a certain precinct is entitled to hold that assignment only so long as the public interests are best served thereby, and he cannot question his removal from that command and the appointment of another by the board of police commissioners.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 482-486, 488-491; Dec. Dig. § 184.*]

3. MUNICIPAL CORPORATIONS (§ 184*)-OFFICERS-REDUCTION IN RANK-REVIEW.

Where a former police captain, who had been reduced, sought to oust his successor by quo warranto claiming his appointment was invalid, the right of the board of police commissioners of the municipality to reduce the relator cannot be reviewed where the appointment of his successor was valid.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 482-486, 488-491; Dec. Dig. § 184.*]

Quo Warranto by the State, on the relation of William Gutheil, against Julius Nelson. On demurrer to pleas. Judgment for

respondent.

Argued November term, 1913, before GUMArgued November term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

precinct, and Flattery in the Second.

In August, 1907, by a resolution of the board, the respondent, Nelson, was appointed a captain of the police department, and was assigned to take command of the detective bureau which was then, or had been theretofore, created.

On the 11th of November, 1911, Capt. Bell died while in office. On the 16th of that month the board removed Capt. Flattery from his office, and immediately thereafter appointed the present relator, then detective sergeant, Gutheil, and Sergeant Foley, captains to fill the vacancies thus created. The chief of police thereupon assigned the relator to duty as captain of the First precinct, and Foley to duty as captain of the Second.

Immediately after his removal, Capt. Flattery began proceedings in this court to test the validity of that action by the board; and on the 3d of February, 1912, we adjudged such removal unwarranted, illegal, and void, and directed his restoration to his office. Twelve days later the board passed a resolution reducing Capts. Gutheil and Foley to their original positions, restoring Capt. Flattery to his office, and directing the chief of police to detail him to his original command, and to assign Nelson, the respondent, to the captaincy of the First precinct. The relator, by this proceeding, seeks to obtain an adjudication of this court that Nelson, the respondent, usurps the office which he now holds, and that he (the relator) is the legal incumbent thereof, and entitled to the command of the First precinct.

[1] The first ground upon which the relaWilliam S. Stuhr, of Hoboken, for relator. tor rests his claim is that, under the proHorace L. Allen, of Hoboken, for respondent. I visions of the manual of rules and regula

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

fensible (a matter discussed in the briefs of counsel) is not involved in the determination of the present proceeding, which stands or falls upon the validity of the appointment of Nelson as captain, and his assignment to the command of the First precinct. That appointment, and the subsequent assignment, being within the power of the board, and constituting the defense set up by the respondent, the demurrer to the pleas must be overruled.

The respondent is entitled to judgment on the demurrer.

tions of the board above recited, the appoint- [ to that of detective sergeant is legally dement of the respondent as captain of police in July, 1907, was ultra vires the board and void; the argument being that, because there were only two police precincts in the city, there could be only two captains legally appointed, and, there being already at the time of Nelson's appointment a captain in charge of each of the two precincts, that appointment violated the provision of the manual. But this, we think, is due to a misconception of the language of that document. The provision thereof is that the police force shall consist of a chief of police, captains, detective sergeants, etc., etc. There is no limitation as to the number of captains, or of officers of a lower grade, that may be appointed. How many of each class there shall be rests in the sound discretion of the board. If the exigencies of the public service at any time should require the appointment of a captain of police whose duty should be other than the command of a precinct, it is within the power of the board, under its own manual of rules and regulations, to make such appointment. The action of the board, therefore, in creating the respondent one of the captains of the police force, and assigning him to the command of the detective bureau, was not taken in disregard of its own manual.

[2] It is further contended that the board

was without power to remove the relator from the command of the First precinct, after he had once been legally appointed thereto.

The line of duty to be assigned to a particular appointee is a matter to be determined from time to time by the board, in the public interest; subject, of course, to such statutory limitations as may exist. The fact that a particular captain has once been assigned to the performance of a particular line of duty, for instance, to the command of a particular precinct, vests in him no right to continue in the performance of that specific duty contrary to the will of the board. He holds the assignment subject to be transferred from one line of duty to another, required to be performed by an officer of his rank, whenever the board, in its good judgment, shall determine it to be for the public interest. The relator, Gutheil, having been appointed captain, and assigned to duty as commander of the First precinct, was entitled to hold that assignment only so long as the public interests, in the opinion of the board, were best subserved thereby. And this is equally true with relation to the assignment of Nelson to duty as head of the detective service. The removal therefore, by the board, of the relator from his command, and its assignment of the respondent to that command, was a valid exercise of the power conferred upon.the board by the Legislature.

[3] Whether the action of the board in reducing the relator from the rank of captain

(83 N. J. Eq. 531 DECKER et al. v. SCOTTISH UNION & NAT. INS. CO. OF EDINBURGH. SAME v. COMMONWEALTH INS. CO. OF NEW YORK.

(Court of Chancery of New Jersey. June 30, 1914.)

INSURANCE (§ 143*)-POLICY-REFORMATION

GROUNDS-MUTUALITY OF MISTAKE.

Complainants, in a suit against an insurance company, were not entitled to reformation of an insurance policy so as to make it payable to themselves as executors instead of a third party to whom it was made payable, where there, was no mutual mistake upon the part of the parties to the suit and no fraud upon the part of the insurance company.

[Ed. Note.-For other cases, see Insurance,

Cent. Dig. §§ 265-272; Dec. Dig. § 143.*]

Suits by Anna M. Decker and another, executors of Pauline Diebold, deceased, against the Scottish Union & National Insurance Company of Edinburgh, and against the Commonwealth Insurance Company of New York. Demurrer of defendants sustained and bills dismissed.

Cecil H. MacMahon, of Newark, for complainants. Alfred S. March, of New Brunswick, for defendants.

As

LEWIS, V. C. The complainants desire a reformation of a policy of insurance covering the property of one Joseph Diebold. is apparent from the pleadings, the right of Joseph Diebold to have it insured is unquestioned. The bill asserts that Joseph Diebold and Anna M. Decker are executors of Pauline Diebold, deceased. Among the assets of the estate of Pauline Diebold, which came to the hands of her executors, was a mortgage. A policy of insurance had been issued to Joseph Diebold acting, not as an executor, but as an individual. This bill is filed to reform the said policy of insurance so that it may be made payable to the executors of Pauline Diebold. It is quite evident from an examination of the papers in this case that there was no mutual mistake on the part of the parties to this suit, and no fraud on the part of the defendants is alleged. There was no contractual relationship between the parties. The executors of Pauline Diebold were not parties to the contract of

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

insurance and never became parties to it. Joseph Diebold says he told one Harrison to have the policy issued to the executors of Pauline Diebold, and Harrison evidently did not carry out these instructions. The insurance companies had no notice whatever of the wish of Diebold in this respect. The complainants' bills therefore fail to show any mutuality of mistake or right of reformation. The case as presented by the bill is one of mere neglect for which reformation cannot be had in equity. The fact that the complainants are not parties to the contract of insurance, it seems to me, disposes of their right of consideration in this court; but, aside from this, assuming that they were such parties, I do not feel that they present a case for equitable relief. The case referred to by solicitor of the defendants on his argument sustains the position taken by him.

Doniol v. Commercial Fire Insurance Co. of New York, 34 N. J. Eq. 30; Henderson v. Stokes, 42 N. J. Eq. 586-589, 8 Atl. 718; Ordway v. Chace, 57 N. J. Eq. 478, 42 Atl. 149; Rowley v. Flannelly, 30 N. J. Eq. 612-all deal with the questions involved in this issue. The opinion of Vice Chancellor Howell in the case of John Plockzek v. St. Paul Fire & Marine Insurance Co., 91 Atl. 812, not officially reported, but brought to the attention of the court, is very much in point.

My conclusion is that the demurrers must be sustained and the bill of complaint dis

missed.

(86 N. J. L. 331)

P. BALLANTINE & SONS v. PUBLIC SERVICE CORPORATION OF NEW

JERSEY. (No. 76.)

defendant, a gas manufacturing company owning land adjoining the plaintiff's land, for injury to its well water caused by the negligent management of the gas company in permitting tar products to escape from its works and premises so as to pollute and injure the plaintiff's well water; subsequent to the entry of the judgment the defendant paid and satisfied it of record and the plaintiff brought another suit against the defendant to recover damages for the continuance of the nuisance, and it was character, and that the judgment was no bar to held that the original nuisance was abatable in the subsequent action for the new injury.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1120; Dec. Dig. § 606.*] 4. JUDGMENT (§ 606*)-DAMAGES-RIGHT OF ACTION-MERGER-NUISANCES.

The continuance and every use of that which is, in its erection and use, a nuisance is a new nuisance for which the party injured has a remedy for his damages.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1120; Dec. Dig. § 606.*1

Appeal from Supreme Court.

Action by P. Ballantine & Sons against the Public Service Corporation of New Jersey. From judgment for plaintiff, defendant appeals. Affirmed.

See, also, 76 N. J. Law, 358, 70 Atl. 167. Frank Bergen, of Newark, for appellant. Pitney, Hardin & Skinner, of Newark, for appellee.

VREDENBURGH, J. The parties to this controversy are each engaged in manufacturing industries of large proportions, in the city of Newark, N. J. Their lands and premises upon which their respective plants are erected adjoin and extend from Front street to the Passaic river. The plaintiff corporation, under the name of "P. Ballantine & Sons" is a brewing industry, manufacturing

(Court of Errors and Appeals of New Jersey. malt liquors which are well known in that

June 16, 1914.)

(Syllabus by the Court.)

[blocks in formation]

OWNER.

The landowner has not the absolute and unqualified property, in all water percolating in his soil and collecting in his wells, to do as he pleases with it, but has the right to its use in a reasonable manner and to a reasonable extent for his own benefit for manufacturing purposes, as well as for domestic consumption and the like.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 110, 111; Dec. Dig. § 101.*]

2. WATERS AND WATER COURSES (§ 104*) PERCOLATING WATERS-POLLUTION.

A gas manufacturing company has not the right to use its works in the manufacture of gas in such manner as to accumulate polluting matter upon its land and negligently allow it to percolate through the soil and contaminate the well water of its neighbor.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 114; Dec. Dig. 8 104.*]

3. JUDGMENT (§ 606*)-RES JUDICATA-ABATABLE NUISANCE.

The plaintiff, a brewing company, recovered a judgment for substantial damages against the

trade, and command a wide market. Its success in such manufacture requires the constant use of large quantities of pure, cool water for the proper preparation of its ale and beer. The water it obtains from its wells

in its lands is peculiarly adapted for its use in such preparation. The defendant gas company manufactures on its lands and premises illuminating gas, and its success in that business necessitates the consumption of large quantities of coal and oil, a residuum of which, after distillation by heat and the purification of the gas sufficient for illuminating requirements, is tar and its compounds. These, being heavier than water, will, if allowed to escape from the gasholders and receptacles in which they form, sink down into and permeate surrounding soil and underground percolating waters, and are carried thereby to neighboring wells of water. It is this fact and this penetrating quality of these tar substances to enter into the soil and waters of the plaintiff that has resulted in the injuries which have led to the long-continued litigation between the parties.

The present action was brought in May,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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