The case differs from Welch v. Hubschmitt Co. because in that case satisfaction of the owner and architect was required; here only that of the owner or his representative. The question remains whether Turck was the representative of the owner. Our reason for thinking he was not is threefold. (1) It was unnecessary to require his certificate for the final payment if the payment was to be made upon his being satisfied. By requiring satisfaction of the owner or his representative in one clause and a certificate from Turck in a proviso immediately following, the parties seem to have had two different persons in view. (2) Turck had already been designated as the architect, and the word "architect" would have been more natural in this clause than the word "representative" if he had been meant. (3) He was made by the contract the judge between the parties as to most important portions of the contract, which were likely to lead to controversy between builder and owner. To have made him the representative of the owner would have deprived him of the judicial position in which the parties meant him to stand, and thereby have deprived his certificate of that conclusive character against the builder which was given to it by the express terms of the contract.

isee. The decision of the New York Court | isfaction of the owner or his representative. of Appeals seems to be to the contrary. Doll v. Noble, 116 N. Y. 230, 22 N. E. 406, 5 L. R. A. 554, 15 Am. St. Rep. 398. The case is entitled to less weight for the reason that the learned judge failed to distinguish between a case where the owner withheld satisfaction unreasonably and one where he withheld it in bad faith. All the cases recognize that the owner must act in good faith. The reasoning of Chief Justice Beasley in Chism v. Schipper, 51 N. J. Law, 1, 16 Atl. 316, 2 L. R. A. 544, 14 Am. St. Rep. 668, applies with greater force to such a case as the present, where it is the owner himself who is to be satisfied. Of course, he cannot avail himself of his own fraud to escape liability on his contract. The motion to nonsuit would have been properly denied if there was evidence of bad faith on the part of the owner. We are not called upon to decide whether the jury in a proper case might be permitted to infer fraud from the fact that the owner was not satisfied with the architect's certificate. The case was not tried on that theory. If it had been, the defendants should have been allowed to ask the question of the plaintiff that was excludedwhether Turck did not tell him at the time he received the certificate that he (Turck) had been discharged as architect. Not only was the case not tried on the theory that the owner acted in bad faith, but no inference of bad faith could be drawn from his refusal to be satisfied by the architect's certificate, since by the terms of the contract that certificate covered only the execution of the contract in a good workmanlike and VAN HORN v. BOARD OF FREEHOLDsubstantial manner, and the plaintiff specifically contracted to furnish good, proper, and sufficient materials to complete the work, with no provision authorizing or requiring the architect to certify whether he

had in fact done so or not. The distinction is pointed out by Justice Fort in Newark v. New Jersey Asphalt Co., 68 N. J. Law, 458, 463, 53 Atl. 294. The contract, it is true, made the architect's decision final as to some things, but it was only as to the true construction or meaning of the drawings or specifications. The learned trial judge fell into error in thinking that the architect's certificate covered, not only these points, but also the question whether the payment was due. His charge as to the finality of the architect's certificate would have been cor

We think for these reasons that there was error, and that the judgment must be reversed that a venire de novo may be awarded.

(83 N. J. L. 239)

ERS OF MERCER COUNTY. (Supreme Court of New Jersey. July 13, 1912.)

(Syllabus by the Court.) OFFICERS (8 4*)-ABOLITION OF OFFICE.

Where a resolution of the board of freeholders abolishing a position is adopted in the the interest of the public weal, and not as a exercise of a bona fide effort to economize in subterfuge to make place for another, the passage of the resolution is within the discretion of the board, and the incumbent of the place is not protected from incidental removal by the provisions of the Civil Service Act [3 Comp. St. 1910, p. 3795].

[Ed. Note. For other cases, see Officers, Cent. Dig. § 5; Dec. Dig. §.4.*]

rect if he had limited it to the points to which the parties limited it by their contract. They contracted that the final payment should be due when all the work was completed according to the plans and specifiIcations to the satisfaction of the owner or his representative provided that in case of each payment a certificate should be obtained and signed by Turck. Thus they made for the final payment a double condition (1) a certificate by the architect; (2) sat

MINTURN, J. The board of freeholders of Mercer county of January 2, 1912, passed a resolution intended to abolish the office of custodian of the county courthouse, and

the prosecutor, who was the incumbent, contests the legality of the resolution on this writ.

in the paid service of the state and within the protection of the Civil Service Act, "it did not preclude the board of taxation from abolishing the clerkship and dismissing the relator when done in good faith and for the purpose of economy."

The resolution in question will therefore

(83 N. J. L. 290)

ING CO.
(Supreme Court of New Jersey. July 12,
1912.)

(Syllabus by the Court.)
MUNICIPAL CORPORATIONS (§ 706*)-STREETS
-NEGLIGENT USE-FRIGHTENING HORSES IN
STREET.

It is not denied that the board possesses this power, provided the Civil Service Act (3 Comp. St. 1910, p. 3795) does not intervene, to protect the incumbent, and provided the abolition of the place be accomplished be affirmed. in good faith, and not as a subterfuge for the employment of another. The prosecutor was appointed as jailer of the courthouse on May 10, 1908, and continued thereafter WIKANDER v. UVALDE ASPHALT PAVto act as warden of the jail and custodian of the courthouse during the intervening years by resolution of the board of freeholders duly passed for that purpose. But, after 1907, he performed the duties of warden under his appointment as custodian of the courthouse. In pursuance of a resolution of the freeholders, the prosecutor surrendered the keys and property of the jail, which he held as warden, to John D'Arcy, who was appointed warden of the jail by the sheriff. Thereafter, at a meeting of the freeholders ⚫ on January 2, 1912, a resolution was passed abolishing the office of custodian of the courthouse, the preamble of which resolution recited the appointment of D'Arcy as war den, and the resulting fact that such pointment left the custodian of the courthouse without any duties to perform.

A horse and wagon being driven through a public street, and while near to and passing a steam roller a dense cloud of black smoke ing the horse and causing him to back the wagwas discharged from the roller's stack, frightenon into a child 42 years old, the plaintiff below, who was playing in the street near the curb, knocking her down and seriously injuring of the defendant in discharging the dense cloud Held, that the questions whether the act of smoke was calculated to frighten a gentle horse, and was an unnecessary act or a necesap-jury to determine, and were properly submitted sary act but negligently performed, were for a to it.

If we were convinced that this resolution was inspired by a desire to expel the prosecutor and place another in his stead, rather than as contended by the defendant, the recorded desire of the freeholders to economize in the public interest, we would have no difficulty under our adjudications in reaching the conclusion that the resolution was invalid.. McChesney v. Trenton, 50 N. J. Law, 338, 14 Atl. 578. But our reading of the record here has not satisfied us that such is the purpose of the freeholders, and consequently the resolution in question must be viewed as an exercise of the legitimate power and discretion of the board, exercised in a bona fide manner, for the public weal, and as such is clearly not assailable or subject to judicial review. 1 Abbott, Mun. Corp. 802; Ryan v. Paterson, 66 N. J. Law, 533, 49 Atl. 587.

It remains only to consider the effect of the adoption of the Civil Service Act upon the prosecutor's position. His contention is that he is protected by that act from removal, even if the removal be a bona fide attempt upon the part of the freeholders to reduce the public burdens by abolishing the office. But the contrary is the law, as settled by the adjudications of this court. Sutherland v. Jersey City, 61 N. J. Law, 436, 39 Atl. 710; Evans v. Freeholders, 53 N. J. Law, 585, 22 Atl. 56.

In the recent case of Paddock v. Hudson County Board of Taxation, 83 Atl. 185, this court held that, even though the relator was

her.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]

Error to Circuit Court, Hudson County.

Action by Alice E. Wikander, by her next friend, against the Uvalde Asphalt Paving Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued February term, 1912, before BERGEN and KALISCH, JJ.

Lindabury, 'Depue & Faulks, of Newark, for plaintiff in error. Alexander Simpson, of Jersey City, for defendant in error.

KALISCH, J. The plaintiff recovered a judgment against the defendant company upon the ground that the defendant, by its servants, negligently managed and operated a steam roller in a public street. The alleged negligence complained of is that the

steam roller emitted dense volumes of black smoke at a time when a horse, drawing a wagon, under the care of a driver, was approaching and near to the roller, thereby causing the horse to back the wagon into a child 42 years old, who was playing in the street near the curb, and seriously injuring her. The defendant moved for a nonsuit and for a direction of a verdict for the defendant, both of which motions were based upon the ground that the plaintiff had failed to show that there was any negligence on part of the defendant company that was the proximate cause of the plaintiff's injury. The trial judge refused to grant either motion, to which refusals the defendant duly

excepted, and the correctness of the court's rulings is now here, under review, on a writ of error.

The defendant's main contention is that the court erred in refusing to take the case from the consideration of the jury. An examination of the testimony convinces us that the case was a proper one for the determination of a jury. There was testimony from which a jury might reasonably have found that the "hooking up of the fire," which sent out the dense volumes of smoke at the time the horse was approaching and passing the roller, frightened the horse, and caused the plaintiff's injury, was either an unnecessary act, or, if a necessary act, was negligently performed. There was testimony which, if believed, warranted a jury in finding that it was the sight of the dense volumes of black smoke issuing from the roller's smokestack that frightened the horse. There was evidence that the horse was old and very gentle. A steam roller is a formidable enough looking engine, in its necessary operation in the public street, to frighten horses. From the testimony, however, it appeared that it was at the time when the steam roller emitted a thick volume of black smoke that the horse became frightened. It further appeared that the defendant's servant, before he "hooked up the fire." took no precaution whatever to ascertain whether any vehicle drawn by a horse was near or approaching. Under such circumstances, it seems to us the question of the defendant's negligence was one for the jury to determine. The facts of this case are controlled by the legal principles enunciated by Mr. Justice Trenchard, who delivered the opinion of the Court of Errors and Appeals in Butler v. Easton & Amboy R. R. Co., 76 N. J. Law, 703, 71 Atl. 276.

it was an independent act of the driver of
the wagon that was the sole cause of the
injury to the plaintiff, whereas, if the driv-
er was negligent, it was the co-operating
negligence of the driver with that of the de-
fendant that resulted in an injury to the
plaintiff. And under, such circumstances the
defendant would be liable. "The initial force
that set in motion the train of circumstances
by which the plaintiff was injured" was the
emitting of the dense volumes of black smoke
by the roller when the horse was near to
and passing it that frightened the horse,
and therefore the defendant cannot escape
liability for the consequences that ensued.
Collins v. West Jersey Exp. Co., 72 N. J.
Law, 232, 62 Atl. 675, 5 L. R. A. (N. S.) 373;
Walling v. Cent. R. R. Co., 81 Atl. 987.
The judgment of the circuit court should
be affirmed.

(83 N. J. L. 467)

FIRTH V. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. June 20, 1912.)

(Syllabus by the Court.) 1. MASTER AND SERVANT (§ 285*)-INJURIES TO SERVANT-QUESTIONS FOR JURY.

The place of work of a servant was a pit sonably safe place unless the tender was moved under a locomotive tender which was a reawithout warning. There was a custom of giving such a warning, but whether it was given as an incident of the work of the master or as the duty of the master to warn the servant was a disputed question. Held that, where the testimony was conflicting and variant inferences could be drawn from it, this question was for the jury.

Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008,
[Ed. Note.-For other cases, see Master and
1016, 1035, 1043, 1053; Dec. Dig. § 285.*]
2. MASTER AND SERVANT (§ 150*)-INJURIES
TO SERVANT-WARNING OF DANGER-DUTY
OF MASTER.

A warning is incidental to the work of the master when the act that constitutes such warning is done as part of the work for the master in the performance of which his servants were at the time engaged, and not as the performance of the master's duty to warn his servants, although it may incidentally have that effect.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 297, 299–302, 305–307; Dec. Dig. § 150.*]

The defendant's further contention is that the injury to the plaintiff was the result of an independent negligent act of the driver of the wagon, because, when the latter saw the roller, he failed to take all precautions to prevent an accident, but continued to drive on and past the roller, and therefore the injury to the plaintiff was the proximate result of the driver's negligence, and not of the defendant's. The driver was lawfully in the street. He had a right to pass the roller. He was under no duty to anticipate that there would be an extra quantity of black smoke discharged from the roller as he was near to and passing it. Butler V. Easton & Amboy R. R. Co., supra, 76 N. J. Law, 707, 71 Atl. 276. But, suppose he was Alan H. Strong, of New Brunswick, for chargeable with all this and was also neg-plaintiff in error. John H. Backes, of Trenligent, it is far from sound reasoning and ton, for defendant in error.

principle that thereby the defendant's act became divested of negligence or became merged in the driver's negligence so as to exonerate the defendant from liability for the result that followed. The fallacy of the defendant's contention lies in assuming that

Error to Supreme Court.

Action by Walter S. Firth against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

GARRISON, J. The defendant in error, Walter S. Firth, recovered a judgment for injuries received while working in the repair shop of the plaintiff in error.

The denial by the trial court of a motion

for a nonsuit and of a motion for a direction of a verdict are assigned as errors.

Upon this writ of error, therefore, the case consists of the testimony resolved most favorably to the defendant in error. Thus constituted, the case to be dealt with is: Walter S. Firth, who had been employed in the repair shop of the plaintiff in error for about two months, was set to work in a pit beneath a locomotive tender in order to remove a cylinder head, in doing which his body at times rested upon one or the other of the rails on which the tender stood, which on one of these occasions was moved without warning to him passing over and crushing his thigh. The movement of the tender was preliminary to the work of removing its tank, which required that the tender be directly under an overhead crane that by perpendicular traction lifted the tank clear of the trucks of the tender. The crane was operated by a man in a cage some 50 feet above the floor who started and stopped the motors that controlled the crane upon hand signals given him from below. At the time of the accident, the preparation for moving the tender into position had progressed as far as the disconnection of its brakes, the hooking of chains to various parts of the trucks, and the connection of these by their center ring with the vertical traction chain lowered from the crane. The hooks by which the chains were attached to the trucks were prevented from falling out of place by the taking up of the slack which was done by the operator of the crane preparatory to the movoving of the tender into its intended position. It was at this stage that the tender moved over the rails inflicting the injury for which damages were recovered.

the man under the trucks in order that the work of moving the tender might not be impeded by the presence of his body on the rails. The bald statement of this contention is its own refutation, for the legal proposition is not merely that the jury might so find. which is, to say the least, questionable, but that the jury could not find otherwise, which is manifestly untenable. In support of this proposition, stress is laid upon the circumstances that the warning was customarily given by a fellow workman as if that were in some way conclusive. The fact is in dispute, but, if it were not, it is only a relevant, not a conclusive, circumstance.

The cases of Miller v. Central R. R. Co., 69 N. J. Law, 413. 55 Atl. 245, and Koneski v. D., L. & W. R. R. Co., 77 N. J. Law, 645. 74 Atl. 516, 26 L. R. A. (N. S.) 644, on which the plaintiff in error relies, do not support his proposition. In each of these cases the act of omission had reference to a duty owed by the servant to the master, and was at once inseparable from the proper performance of the work of the master, and at the same time incidentally constituted a warning upon which the master's other servants customarily relied. Such reliance was therefore clearly none other than that a fellow servant would, without negligence, perform the duty thus owing by him to the common master; and it is plain that the failure of a servant to perform a duty thus owing to the master does not transform the duty into one owing by the master to his servants.

[2] These cases therefore aptly illustrate what is meant by a warning that is incidental to the work of the master, showing it to be an act done as part of the work for the master in the performance of which the servant was at the time engaged, and not a performance of the master's duty to warn his servants, although incidentally it may have that effect.

Thus in the Miller Case the neglected duty was that of a rear-end brakeman to go back and flag a train that might be coming, a duty that he owed to the master in the line of his employment. Incidentally the performance of this duty served as a warning to the servants on the on-coming train.

In the Koneski Case the neglected duty was the ringing of the engine bell, a duty that appertained to the proper performance of that duty, and hence was owed by the servant to the master.

Young Firth had been put in charge of a Mr. Burr, by whom he was instructed as to working in the pit, and to whom, on several 'occasions, he had said that he was "afraid to work under there"; to which, on at least one occasion, Burr replied, "Walter, never be afraid, because you will be notified before the tender is moved." As a matter of fact and custom, when the tender was about to be moved, some one would come around and say, "Get out, we are going to move it." On the occasion of the plaintiff's injury, no such warning was given. Such being the facts that a jury might find, the argument relied upon to take the question of the defendant's liability from the jury is that the only permissible inference from these facts is that the customary warning "was incidental both in its object and performance to the work of the master," i. e., that the warning was in cidental to the moving of the tender and not for the safety of the man who was working underneath it. In legal effect, the prop-gaged in such work, might well be found by osition in question, therefore, is that no other conclusion could be reached from the testimony than that the warning was given to

Directly opposed to the facts of these cases is the case in hand, in which the work of moving the tender had no tendency to give rise to any incident that would act as a signal or warning, which, consequently, if given. by word of mouth, by the servants en

the jury to have been done by them, not in the performance of their work for the master, but in the performance of the duty of the