Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-11-15
CHURCH LOSES ITS
ACTION AGAINST
P. S. RAILWAY CO.
Court of Errors and Appeals
Holds PrOyis0 in Its Con-
sent Is Illegal.
Especial to the Newark Stall

TRENTON, Nov. 15.-The suit of st.
Columba's Church, Newark, to Gust the
Public Service Railway Company from
where tracks had been laid with the
consent OF the church, has been decided
by the Court of Errors and Appeals in
an opinion by Justice Trenchard, which
gives reasons for affirmance Of the SUI
preme Court, where the decision was
in favor of the company.
Consent of the church to the com
pany to place tracks in Thomas street
was with the proviso that there should
not be a switch upon the street. The
proviso was disregarded. The Court
Of Errors opinion holds that the pro-
viso was not legal and that for this
eason it was not binding upon the
Street and Water Commission when
the ordinance authorizing the placing
of tracks was passed.
In the syllabus of the opinion Justice
~Trenchard sets forth hat the proviso
wal Illegal in two respects, because it
was for the exclusive benefit of the
conserving land owner, and that 1t is
hat of the representatives of the pubic
interest in the matter. 1t is also set
up by Justice Trenchard that the pro,
viso did not nullify the consent; that
the consent was, the proviso notwith-
standing, effectual for the purpose Of
giving Jurisdiction to the Legislative
body, the Street and Water Commits
sion. to grant permission to place the
tracks, and that having In this manner
acquired Jurisdiction the commission
could lawfully disregard the proviso.
Non-suit IL Sustained.
The non-suit In the Hudson Circuit
Court in the damage action of Edward
Manning Hoberg, a minor, against
Collins, Lavery & Co., Jersey City
lumber dealers, has been sustained by
an opinion in the Court of Errors and
Appeals. Hoberg, aged 9 years., was
stealing a ride on a wagon of the
lumber company. Alighting from the
wagon, he fell in front of a trolley a
and sustained a crushed foot. It de-
veloped that the boy jumped from the
wagon because the driver struck at
him with a whip. 1t was held by the
court that in view of the circumstances
the company wal not liable for the
injuries sustained, and on the ground
that an act which is negligent without
righteousness OF intent will not render
one liable for injuries sustained by a
trespasser the Court of Errors sustains
the non-suit. The opinion was written
by Justice Voorhees,.
MiddIcsex County Case.
Because the trial judge in the Mid
dlesex County Court, in the case of the
New Jersey Short Line Railroad Com
pany against Mariana w. Manning to
acquire property, charged a jury thar
condemnation of the and of the woman
by the railroad would not carry with 1t
an obligation upon adjoining owners to
! support laterally the railroad property,
together with any additional weight
which might be placed upon 1t for rail-
road which obligation woui
prevent the digging of clay for some
distance on either side of the railroad
tracks, unless a containing wall were
built, the Court of Errors and Appeals
has declared the charge in error n
sets aside the verdict of the Middlesex
County Court.
NesIer VIII Case.
Refusal of the Essex County Court
to admit to probate the will of John y.
Nesler has been affirmed by Justice
Trenchard, in an opinion of the Cour
of Errors and Appeals. Nesler was of
Newark. What was claimed to be MS
will was written by his brother and was
signed in a little room of Nesler & Co.,
of Newark. The witnesses were John
r. Mackenzie and Emma A. Schael,
now Mrs. Charles f. Nesler. 1t was
shown that the brother of the dead
man made all of the arrangements for
| the making of the will and that John
said not a word about 1t in the pres
ence of the witnesses. 1t is held that
there were no essential elements COM
Piled with in the making of the will.
Park Commission Case.
Holding tina the Essex County Park
Commission act provides for an as
sessment of special benefits for i'm
provements, and hat it could V
have peer the legislative intent to au-
thorize another body to levy such an
assessment, the Court of Errors n
Appeals has reversed the Supreme
Court opinion which affirmed an assess
ment levied by East Orange against
Annie T. Z. Kirkland, on Park avenue.
Control of the sidewalks of Park ave-
nue. is in the Essex County Park Com
mission and not in the city, according
to an arrangement made in 1893, when
East Orange transferred control of
Park avenue to the Park Commission.
ZeIIers Wins Legal Battle.
Joseph Zellers, of Newark, has won
his, legal battle to have reversed the
non-suit in the Essex Circuit Court IN
his suit for damages against the De-
laney Spring Company. He fell into a.
iywheel while oiling machinery in the
plant of the company and sustained
permanent injuries. AT the trial he
was %non-suited because the trial judge
held that Zellers assumed a risk volun-
tarily. In oiling the machinery Zellers
was on a board, which proved to have
been somewhat weakened by decay.
The board ave way. The Court of Err
rors holds that even il he had assumed
a voluntary risk. he had not knowledge
of the weak board, of which the COM
pany should have known through in
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