#### FRED KIESOW, Jr., BY NEXT FRIEND, ET AL., RESPONDENTS, v. NEW JERSEY AND NEW YORK RAILROAD COMPANY, APPELLANT.

Argued and Submitted at May term, 1933

Decided October 13, 1933.

Before Justices Parker, Lloyd and Perskie.

Por the appellant, *Edward, A. M oriel ey*and *Howard F. McIntyre.*

Por the respondents, *Nathan Goldman.*

Per Curiam.

No. 454 is the appeal proper, and No. 472 is a motion to dismiss the appeal. No. 454 was submitted without argument subject to the motion, and we have only the brief for appellant. The motion to dismiss was argued by both sides but briefed only by respondents.

The action arose out of an accident at a railway crossing, in which the infant plaintiff was injured, apparently slightly, as the verdict in his favor was for $125 and in favor of his father, who sued *per*quod, was for $29. While the expense of prosecuting the appeal even successfully must amount to considerably more than is needed to pay the judgment, the moral as well as legal right to a review is indubitable. However, counsel taking an appeal in such a small case are held to the same duty of diligence and correct practice as in a large one. By the statute as amended in 1915 *(Pamph. L., p.*549; *Cum. Supp. Comp. Stat.*1924, *p.*983), the right of appeal is conditioned upon the appellant entering into bond to be approved by the judge, within twenty days after the “determination or direction” with which appellant is “dissatisfied.” *848This condition of the statute was not met. The trial and judgment were on February 3d; the bond was approved and filed March 8th, or thirty-three days thereafter. It was intimated at the argument of the motion, subject to contradiction, that respondent waived the right to take advanage of the delay. It was further intimated that the waiver was in writing, but such writing was not produced nor was its absence satisfactorily explained. Consequently we should not take notice of it. Section 11, Practice act 1903 (revision of 1877, page 850, section 14; N. J. *L.*xii). For want of a proper bond the appeal must be dismissed. *Cohen*v. *Peoples Insurance Co.,*5 *N. J. Mis. R.*700; 138 *Atl. Rep.*112. See *Seiler*v. *Simpson,*76 *N. J. L.*450; 69 *Atl. Rep.*971.

This disposes of the case. We may add that of the four grounds of appeal, the first is faulty as containing two propositions of law, one of which is sound. *Slate*v. *Bove,*98 *N. J. L.*350; 116 *Atl. Rep.*766; *affirmed,*98 *N. J. L.*576; 119 *Atl. Rep.*926. The fourth is too general to point out any ruling of the trial court. The second is similar in character. As to the third, the action of the trial judge merits criticism. One fundamental dispute of fact in the case was whether the flashlights on the crossing were working or not. After defendant’s counsel had examined one or two witnesses on the point, he stated that he had at least twelve more witnesses. “The court: I refuse to permit you to call them.”' (Exception prayed and allowed.)

Assuming what is not entirely plain, that these twelve witnesses were to testify on the material point and exonerate defendant of negligence, particularly as contributory negligence was not in the ease because plaintiff was a mere passenger on his employer’s truck, it was plainly the duty of the court to allow counsel to call them. See *Dierkes*v. *Hauxhurst Land Co.,*80 *N. J. L.*369, 374; 78 *Atl. Rep.*361. But if there was error, the case is not before us in such wise as to permit a review of it. For the reason above given the appeal will be dismissed.