the river; the fact that it was found on top of the rocks, and also where the weil digger (Conlon) made, after August, 1906, five different borings, at depths from 32 to 50 feet, for wells on the Ballantine property, and found tar in each of the holes bored there, and that in two other of such borings, made in defendant's gasworks adjacent to and north of plaintiff's lands on Front street, tar was found at considerable depths; the fact that in July, 1909, the malthouse well on plaintiff's premises showed tar pollution; the fact that after August, 1906, defendant's drip pots, carrying tar, continued to empty into the ground.

The appellant's contention that this tar since the date in question was prevented from all leakage from its relief holder and other receptacles by the excellence and tightness of their cement floors and brick walls is not sustained by reasonable probabilities. That such tar and its compounds might penetrate through cracks in cement not visible to the eye was the opinion of the expert, Prof. Pond. He testified that it is "perfectly well known that concrete may have lots of regular network with cracks in it yet not be visible to the eye," and that "if such were the case it would leak water and tar." The jury, who went to the premises in question, and who, presumably, closely examined, by the eye and touch, the cement and brick receptacles, rejected the defendant's contention in this regard. How can we now say they saw no evidence of any cracks in the walls or cement through which the tar liquid had escaped? By their verdict they have declared that they saw evidence of such escape and leakage. The jury had exceptional opportunities to arrive at a correct result, particularly as to the leakage of the tar receptacles, quite outside of and beyond the testimony of witnesses appearing in the record, and this important circumstance should not be lost sight of in estimating the weight to be given to the inference to be drawn from the verdict of the jury that such fact of leakage had been made manifest to them by their own observation. This result we also reach from the printed testimony after giving due effect to the importance of defendant's evidence demonstrating that coloring matter placed in the river opposite the wells of the plaintiff can be, and was, pumped, by means of its air-lift system of pumping, from the river to the wells. We fail to see that such fact excludes the possibility of pollution from defendant's premises. Even admitting that it be true that some coal gas tar pollution, found in plaintiff's well water came from the contiguous waters of the river, it did not follow that the pollution proved by the plaintiff's evidence to be in its wells did not come from the defendant's works. The defendant's proofs did not, we think, negative those of the plaintiff as to the pollution of plaintiff's wells with oil gas tar 91 A.-7

peculiar to the kind originating in defendant's works.

[3] Error, it is also insisted by appellant, occurred on the trial below because the court refused to direct a verdict in its favor made on the ground that the former recovery of damages by the plaintiff was a bar to any recovery in the present suit. The appellant's insistment is that the injury at the foundation of the first action for damages was a single tort or nuisance, not abatable, and for which injury the plaintiff could recover damages but once and for all, and that if the nuisance sued for in the first suit was of a permanent and continuing character, the plaintiff must recover in that action all the damages past and future which the maintenance of the nuisance has occasioned and will occasion in the future. But, we think, the injury sued for in the former action was not of a permanent character, but was temporary and abatable, and that it was the defendant's duty to abate its continuance, and its failure so to do gave rise to a new cause of action.

[4] The authorities uniformly hold that 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. Staple v. Spring, 10 Mass. 74; Hodges v. Hodges, 5 Metc. (Mass.) 205.

Every continuance of a nuisance is held to be a fresh one. 3 Blac. Com. 220.

In actions for a continued nuisance a judgment recovered in the first cannot have an effect to bar the second, nor to diminish the measure of damages recoverable by it. Baltimore R. R. Co. v. Fifth Baptist Church, 137 U. S. 568, 11 Sup. Ct. 185, 34 L. Ed. 784; Troy v. Cheshire R. Co., 23 N. H. 83, 55 Am. Dec. 177.

In Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am. St. Rep. 711, the gas company was sued for damages for permitting injurious matter to percolate through subterranean streams into plaintiff's well, and the court held that the injury was temporary and not permanent in character, and was capable of being avoided in the future without permanent injury to plaintiff's land. Also, see case of Van Veghten v. Hudson R. R. Co., 103 App. Div. 130, 92 N. Y. Supp. 956.

In Fairbank v. Bahre, 213 Ill. 636, 73 N. E. 322, it was held that a nuisance by offensive odors was temporary in character for which successive, actions could be maintained, but that plaintiff could not recover in the action for injury sustained after the institution of the suit.

In Hatfield v. Central Railroad Co., 33 N. J. Law, 251, an action to recover damages for the erection and continuance of a nuisance, it was held that a verdict could not include prospective damages. See, also, Lewis v. Penn. R. Co., 76 N. J. Law, 220, 68 Atl. 1077.

The defendant's argument that, because there was evidence of other sources of pollution from the Passaic river, the damages found by the jury to have been inflicted upon the plaintiff's property by the defendant were excessive in amount for the injury sustained by the pollution emanating from its works cannot be made the proper subject of error in this court (Jenkins v. Penn. R. R. Co., 67 N. J. Law, 331, 51 Atl. 704, 57 L. R. A. 309), and we find nothing in the record that discloses any legal error.

The judgment should be affirmed.

GREGUTIS v. WACLARK WIRE WORKS. (Supreme Court of New Jersey. April 13, 1914.)

DEATH (§ 31*)-WRONGFUL DEATH-RIGHTS OF ACTION.

Under Death Act (2 Comp. St. 1910, p. 1907) § 7, providing that on the death of a person by wrongful act who, if death had not ensued, could maintain an action for damages in respect thereof, the person who would have been liable if death had not ensued shall be liable notwithstanding the death, the nonresident dependents of a servant whose contract was governed by the Employers' Liability Act (Acts 1911, P. L. p. 134) cannot sue for his wrongful death, as the Employers' Liability Act provides no compensation for nonresident dependents, and the employé, had the injuries not been fatal, would only have been entitled to the compensation provided for in the Liability Act, and could not have maintained an action for damages.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 35, 37-46, 48; Dec. Dig. § 31.*1

Action by Eva Gregutis, as administratrix, against the Waclark Iron Works. On motion before a single Justice of the Supreme Court to strike out the complaint. Motion granted. Argued before BERGEN, J., sitting alone

under the statute.

Kalisch & Kalisch, of Newark, for the motion. John J. Stamler, of Elizabeth, opposed.

BERGEN, J. This is a motion to strike out a complaint in an action brought under the Death Act to recover damages for the death of the plaintiff's intestate. The complaint avers that the deceased was killed while in the employ of the defendant; that he left a father, mother, three sisters, and one brother; that all were dependents of his, and all residents of the Empire of Russia; "and therefore the administratrix is not entitled to recover against the defendant" under the Employers' Liability Act of 1911 (P. L. p. 134).

The only question raised and argued is that the contract of the deceased is governed by the act of 1911, and that, as by it no compensation is provided for alien dependents not resident in the United States, no cause of action is stated; the defendant's claim being that the right of nonresident next of kin to damages is limited by the Employers' Liability Act to the compensation

which it provides, and, as it expressly states that compensation under the schedule established by the act shall not apply to nonresident alien dependents, the right of nonresident next of kin to damages under the Death Act is taken away, and therefore there is no statutory remedy remaining to such persons. No question as to the sufficiency of the complaint, if the action can be maintained under the Death Act, was urged on the argument, and I have considered only the precise question presented and argued, which is: Was the remedy given under the Death Act altered or modified as to nonresident next of kin in cases where an employé is killed while at work under an agreement fixing compensation in case of accidental death according to

a schedule which excludes such nonresidents from the benefit of the compensation so established by the act of 1911?

That such nonresident aliens have a right of action under certain conditions is settled in this state (Cetofonte v. Camden Coke Co., 78 N. J. Law, 662, 75 Atl. 913, 27 L. R. A. IN. S.] 1058); but such right depends upon the condition that a party, injured through the negligence of the defendant, would, if death had not ensued, be entitled to maintain an action in respect thereof (P. L. 1848, p. 151; 2 Comp. St. 1910, p. 1907, § 7).

I think it must be conceded that, if the deceased had suffered an injury, not resulting in death, he would have been bound by the compensation provided for in the act of 1911 (P. L. p. 134), and could not have brought suit for his injuries in disregard of that act, and, if he could not, then it would follow that the condition upon which a right of action is given to the personal representative of a deceased person is not present. In addition to this, the act of 1911 covers all cases of death, and compensation therefor, where the contract of the employé is subject to section 2 of the act, and to that extent the act of 1848 is inconsistent with it, as the later act provided a different procedure and rule of damages, and, being inconsistent, it cannot be applied to the class of cases enumerated in the statute of 1911, for that act repeals all inconsistent legislation.

The conclusion I have reached is that, where an employé contracts to work under section 2 of the Employers' Liability Act, the damages to be paid by the employer in case of death are limited by that act, and that an action by next of kin cannot, in such case, be maintained in disregard of the act. Compensation is given, in lieu of damages, to dependents, and not to next of kin as such. The power of the Legislature to give or withhold a right of action in such case, and to declare to whom, and in what amount, compensation shall be made, cannot be doubted.

This complaint admits an employment governed by the second section of the statute of 1911, but avers that because, under that act, nonresident dependents are excluded from

Vredenburgh, Wall & Carey, of Jersey City, for appellant. Samuel Koestler, of Elizabeth, for appellee.

What the plaintiff claims is that in all cases, where the entire work is let to an independent contractor, the employer is liable for defects in ways, works, machinery, or plant belonging to and furnished by such independent contractor. This is not the proper construction of the statute, but, on the contrary, the employer is only liable where he furnishes the ways, works, machinery, or plant in aid of part execution of his work, and does not make him liable where the entire work is let to an independent contractor, who furnishes the ways, works, machinery, or plant, over whose negligent conduct in not remedying defects the employer has no control.

As this complaint charges that the doing of the entire work, as well as the furnishing of the ways, works, machinery, or plant, was let to an independent contractor by the defendant, through whose negligence in not discovering and removing the defects complained of the plaintiff's intestate was killed, it does not state a cause of action under the statute invoked, and it is not claimed that this defendant would be liable for the negligence of Hendrickson, unless paragraph 3 of section 1 of the Employers' Liability Act applies.

The motion to strike out should be allowed. The defendant may take an order striking out the complaint, with costs.

(Syllabus by the Court.) MASTER AND SERVANT (§ 31*)-UNLAWFUL DISCHARGE-ACTION FOR DAMAGES.

Where a factory superintendent, under a contract of employment for a term of five years, is, before the termination of that period, forcibly excluded continuously for a considerable time by his employer from the factory and the place where his work has to be done, and his salary is stopped, he may consider himself discharged, and, if his conduct has not justified discharge, may recover damages for the breach of his contract of employment.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. § 37; Dec. Dig. § 31.*]

Appeal from Supreme Court.

Action by Dennis J. O'Brien against the Straight Filament Lamp Company. Judg

WHITE, J. This is an action for damages for the breach of a contract of employment. The plaintiff appellee, the inventor and patentee of an electric lamp, entered into a contract in writing with the defendant appellant, which, after reciting the organization of the defendant company for the purpose of manufacturing and exploiting said electric lamp, and the fact that by reason of said circumstances the services of the plaintiff were of unusual and unique value to defendant company, provided that the defendant company thereby employed the plaintiff as its factory superintendent, with general supervision over the manufacture of said lamp, subject to the control and direction of the officers of the company, for a term of five years, at a salary of $200 per month. There was ample evidence (most of it uncontradicted) which, if believed, would establish the following facts, viz.: That plaintiff entered into this employment and continued therein for about a year; that another man, Heebner, was then made superintendent, and plaintiff was directed to take entire charge of the laboratory; that upon his objecting to this he was persuaded by the defendant to consent to it on the representation that it did not impair his contract of employment, but would improve the efficiency of the manufacturing department and consequently benefit all the stockholders, of whom plaintiff was one; that shortly after obtaining this consent the defendant dismantled the old laboratory room in the factory, and then proceeded in a desultory manner, during a period of about four months, to go through the pretense of fitting up a new laboratory room, which, however, it never completed; that at about the expiration of this four months it discharged the plaintiff, stopped his salary, and forcibly excluded him from the factory and from the laboratory; and that plaintiff has made proper, but unsuccessful, effort to get other employment.

On the part of the defendant it is contended that it did not discharge the plaintiff, but only suspended him and his salary pending his noncompliance with its reasonable directions, or, if what it did amounted to a discharge, such discharge was justified by plaintiff's failure to obey its reasonable directions. The directions in question were in writing, and the trial judge ruled that they were reasonable. The material one was by the treasurer of the company, as follows:

"On behalf of the president and committee I respectfully ask you to forward to the committee a statement of material furnished by the factory to the laboratory and the amount of material used in the laboratory work * * since the 1st day of February last."