1. Under the sixth section of "An act to revise and amend 'An act for the taxation of railroad and canal property,' approved April 10, 1884," which latter act was approved March 27, 1888 (P. L. p. 272), the property of a foreign railroad corporation in this state, which leases or operates the property of a domestic or canal company, other than that which it derives from the lessor, is assessable in like manner as that of a domestic railroad or canal company.

(Syllabus by the Court.)

In the matter of the application of the Lehigh Valley Railroad Company for a summary determination as to certain property assessed. Judgment rendered.

Argued February term, 1904, before FORT, GARRETSON, and PITNEY, JJ.

Smith & Brady, for Lehigh Valley Railroad Co. J. I. Blair Reiley, for Phillipsburgh. Robert H. McCarter, Atty. Gen., for the State.

GARRETSON, J. By an order of the Chief Justice, three justices of the Supreme Court were assigned to determine in a summary way the character of certain property in the town of Phillipsburgh, and whether used for railroad or canal property, and by which assessors-the State Board of Assessors, or the assessors of the town of Phillipsburgh—the same has been lawfully assessed for taxes for the years 1901, 1902, 1903, and to direct the cancellation or reduction of either assessment as the character of the property may require, and to make such order as to the return to the taxpayer of any tax, or any portion thereof, that may have been paid to the state or to the inhabitants of the town of Phillipsburgh, as shall be deemed just.

It appears from the stipulation of the parties that the property in question is a part of a railroad bridge over the Delaware river at Phillipsburgh belonging to the Lehigh Valley Railroad Company, and the assessor of the First Ward of Phillipsburgh assessed it for the years 1901, 1902, and 1903 as the property of that company. The State Board of Assessors assessed the same property as part of the main stem of the Easton & Amboy Railroad Company. The bridge in question was built by a railroad corporation of Pennsylvania by permission of the state of New Jersey, which corporation afterwards became the Lehigh Valley Railroad Company, also a Pennsylvania corporation. In the case of

Lehigh Valley Railroad Co. v. Mutchler, 42 N. J. Law, 461, in 1880, the taxability of this very property was in question; and it was there held that so much of this property as belonged to the Lehigh Valley Railroad Company was taxable by the local authorities, because the acts of April 2, 1873 (P. L. p. 112), and April 13, 1876 (P. L. p. 129), which provide for the taxation of railroad companies, applied only to domestic corporations. In 1884 (P. L. p. 142) the Legislature enacted "An act for the taxation of railroad and canal property," by the ninth section of which act it is provided "that if the property of any railroad or canal company be leased or operated by any other corporation foreign or domestic the property of the lessor or company whose property is operated shall be subject to taxation in the manner hereinbefore directed, and if the lessee or operating company being a foreign corporation, be the owner or possessor of any property in this state other than that which it derives from the lessor or company whose property is operated it shall be assessed in respect of such property in like manner as any domestic railroad or canal company." This appears, in the same language, as part of section 6 of "An act to revise or amend 'An act for the taxation of railroad and canal property,' approved April 10, 1884." P. L. 1888, p. 272. It further appears from the stipulation that the Lehigh Valley Railroad Company, a foreign corporation, is the lessee of the Morris Canal & Banking Company, a New Jersey corporation, by consent of the state of New Jersey, and operates the Morris Canal. The property of the Morris Canal is taxable under the foregoing acts. We have, then, the precise situation set out in the statute, viz., a foreign corporation, lessee of the property of a domestic corporation, whose property is operated by the foreign corporation, and such lessee or operating company, so being a foreign corporation, the owner of property in this state other than that which it derives from its lessor, and therefore liable to be taxed in like manner as a domestic railroad corporation.

The result is that we determine that the property in question was properly assessable by the State Board of Assessors for the years 1901, 1902, and 1903; that the assessment of that property by the assessor of the town of Phillipsburgh for those years should be set aside; and that the taxes paid by the Lehigh Valley Railroad Company to the town of Phillipsburgh upon the property in question for the year 1901 be returned by the town of Phillipsburgh to the Lehigh Valley Railroad Company.

(71 N. J. L. 29)

NEW JERSEY TRUST & SAFE DEPOSIT CO. v. NATIONAL GAS & CONSTRUCTION CO.

(Supreme Court of New Jersey. June 13, 1904.)

CONTRACT-MODIFICATION-CONSIDERATION.

1. When one, who has contracted in writing to do certain work, learns that the other contracting party places on the writing a construction differing from what the first party really intended, and on that ground in good faith refuses to prosecute the work, his consent to proceed without further objection is a legal consideration for an agreement between the parties to modify the written contract.

(Syllabus by the Court.)

Action by the New Jersey Trust & Safe Deposit Company against the National Gas & Construction Company. Verdict for plaintiff. Rule to show cause discharged.

Argued February term, 1904, before the CHIEF JUSTICE and SWAYZE, GARRISON, and DIXON, JJ.

Howard Carrow and William J. Kraft, for plaintiff. Beldon & Leaming, for defendant.

DIXON, J. This suit was brought to recover the sum due on the acceptance of the following order:

"Philadelphia, March 3, 1902. "National Gas and Construction Company, 112 North Broad St., Phila. Gentlemen: Please pay to Mr. George Pfeiffer, Junior, on the completion of his contract with you for the construction of the sewer plant at Burlington, New Jersey, in accordance with the terms of the contract and to your satisfaction, the sum of four thousand nine hundred and eighteen and six one hundredths ($4,918.06) dollars in addition to whatever amount may be due him under your present construction and interpretation of the contract between you, and also in addition to whatever sum may properly be due him for extra work in the construction of said plant; provided the total amount paid to George Pfeiffer, exclusive of the amount due for extra work, does not exceed the sum of fifty six thousand six hundred and fifty .one and fifteen one hundredths ($56,651.15) dollars. This order is, however, not to be valid or to warrant such payment unless and until the said sewer shall be completed in accordance with the terms of said contract and delivered by said Pfeiffer free of all liens and encumbrances, according to the terms of the contract. "Lansdowne Construction Co., "Samuel C. Kent, Prest.

"[Corporate Seal.] "Accepted when properly executed. "National Gas and Construction Co., "By Jos. S. Keen, Jr., Prest." The order was assigned by the payee to the plaintiff a day or two after its date. At the trial in the Camden circuit the plaintiff

1. See Contracts, vol. 11, Cent. Dig. § 1120.

obtained a verdict, which the defendant now seeks to have set aside.

The first position assumed by the defendant is that nothing ever became due upon the order, and in support of that we are referred to a stipulation made at the trial to the effect that the defendant had paid Pfeiffer $56,651.15 "on account of the contract of August 30, 1901," which is the contract mentioned in the order. But this stipulation is not conclusive on the real question involved. It appears that a dispute arose between the defendant and Pfeiffer as to their rights under the contract between them dated August 30, 1901, their difference being thus described by the defendant's chief engineer, Mr. Ledoux: "I interpreted the contract according to the quantities in the contract itself and the prices in the contract itself. Senator Pfeiffer claimed that his bid was based on some other quantities which he ought to have had put into the contract, but which he made a mistake in not having put in." To settle that dispute the present order and acceptance were given, and its terms cover such sum, not exceeding $4,918.06, as, when added to "whatever amount may be due to him [Pfeiffer] under your [the defendant's] present construction and interpretation of the contract," would make the sum of $56,651.15. Hence the inquiry is, not what came due or was paid on the contract, but what came due on the defendant's construction of the contract. Respecting this, testimony offered by the defendant is clear. Mr. Ledoux testified that he never changed his interpretation of the contract, but that, as the basis of settlement, he allowed "the full amount of the contract price and also the amount of that agreement," meaning the order in suit. His final estimate, an exhibit in the cause, states as the amount due on the contract the sum of $51,792.51, and "by agreement made March 3, 1902, $4,918.06," making a total of $56,710.57. The difference between this and the limit set in the order, $56,651.15, has not been the subject of comment, and need not be further noticed by us. Mr. Hodge, the defendant's secretary and assistant treasurer, also testified that the sum paid to Pfeiffer included what was due under the order. This evidence makes it plain that $4,918.06 came due on the order, and hence, under Pfeiffer's Consetransfer, belonged to the plaintiff. quently, if the defendant was notified of the plaintiff's title before the money was paid to Pfeiffer, the defendant became bound to pay the plaintiff that sum.

*

Pfeiffer claims that there is still owing to him from the defendant about $5,500, but the defendant insists that it made a final settlement with him about July 21, 1902, when he was paid about $13,000. In either case, notice given before July, 1902, would bind the defendant. Pfeiffer testified that he told the defendant's president, assistant treasurer, and chief engineer of the assignment a few days after it was made; and one of those offi

cers swore that no such information was giv en him, and the other two swore that they had no recollection of it. In response to a special interrogatory submitted to the jury by the trial justice the jury returned a finding that notice of the assignment was given before the second week of March, 1902. We think the nature of the evidence would not justify us in overturning this conclusion of the jury. Counsel for defendant further insists that, even if they were obliged to pay the plaintiff, yet Pfeiffer, by his own evidence, is shown to have been authorized by the plaintiff to receive the money for it, and hence the payment to him about July 21, 1902, satisfied the present claim. But Pfeiffer's evidence on this point clearly refers to a time after that date, and to a demand for payment which was refused. The payments made up to and including that date were certainly not made to nor received on behalf of the plaintiff.

Lastly, it is urged that the order and acceptance were void for want of consideration. But there manifestly was a legal consideration. The settlement of the dispute, and Pfeiffer's consent to go on with the work which he had avowed a determination to abandon unless adjustment was made, were valid grounds for a modification of the contract, if this order introduced any modification, and, if it did not, the contract itself was sufficient consideration for this instrument.

It

is not shown that Pfeiffer's contention as to the real bargain was set up in bad faith, and he might have resorted to a suit in equity for reformation of the written contract. The law afforded the defendant no means of compelling Pfeiffer to prosecute the work on the terms of the writing. It could only give a pecuniary compensation for refusal, and under these circumstances for the parties to settle their controversy by mutual concessions was clearly lawful.

The rule to show cause should be discharged.

BRADLEY v. MCPHERSON. (Court of Chancery of New Jersey. May 28, 1904.)

RIPARIAN RIGHTS-GRANTS-ESTABLISHMENT BILL TO QUIET TITLE-COMPLAINANT'S POSSESSION-CLAIMS OF THIRD PERSONS.

1. Under a statute authorizing the maintenance of a bill to quiet title to real property, where complainant is in peaceable possession of the lands, claiming to own the same, complainant need only be in peaceable possession of the locus in quo as against defendant, without regard to the claims of third persons.

2. Mere words denying the right of complainant to possession of real property, which afford complainant no right to test the substance of the adverse claims by an action at law, are insufficient to destroy the peaceableness of complainant's possession, required to entitle him to maintain a statutory bill to quiet title.

3. Where defendant's lot was only washed by the sea on one corner in cases of high tide, and, at the time the lot was sold to him, it was

claimed that there was ground between defendant's lot and high-water mark, a riparian grant to defendant was invalid.

4. The right to a riparian grant of shore rights must be exercised by keeping within side lines at right angles with the high-water line, if that is straight, and, if curved or irregular, then within side lines which divide the fore shore proportionately among the littoral own

ers.

Action by Thomas Bradley against James B. McPherson. Judgment for plaintiff.

G. A. Bourgeois, for complainant. Thompson & Cole, for defendant.

REED, V. C. It appears that one John McClees was from 1860 to 1897 the owner of a tract of land in Atlantic City. Mr. McClees, by a deed made March 9, 1897, sold the said tract to the Atlantic City Beach Front Improvement Company. The Atlantic City Beach Front Improvement Company on August 26, 1899, sold from this tract of land a lot to John G. Vogler. The dimensions of this lot were 100 by 60 feet. After the improvement company sold this lot to Vogler, it, on November, 1899, sold all the remaining portion of the tract which it had bought from McClees to Charles G. Henderson, Jr., and two others-Messrs. Moss and Hancock. On August 6, 1900, Mr. Vogler sold to John McPherson the 60 by 100 feet lot above mentioned, and McPherson's title is now owned by the defendant. On December 27, 1900, the riparian commissioners made a grant to John McPherson as riparian owner. On October 21, 1901, the same board made a grant to Henderson, Jr., Moss, and Hancock, as riparian owners. The two grants included the same area, and the second grant-the one to Henderson and others-is made subject to the rights, if any, acquired by McPherson in his grant of December 27, 1900.

The question tried at the hearing was whether on August 26, 1899, when the Atlantic City Beach Front Improvement Company sold the 60 by 100 feet lot to Vogler, the line of ordinary high water of the ocean and inlet touched that lot. This point of time was adopted, rather than that of December 27, 1900, when the riparian grant was actually made to McPherson, upon the doctrine laid down in Ocean City Association v. Shriver, 64 N. J. Law, 550, 46 Atl. 690, 51 L. R. A. 425. Counsel for the defendant, however, challenged the right of this court to consider the testimony respecting the location I of the line of ordinary high-water mark, because of an alleged lack of jurisdiction. The lack of jurisdiction, as it is alleged, arises from the absence of peaceable possession of the complainant at the time when the bill was filed. That the complainant had possession of a part of the premises included within the riparian grant is proved. The presence of the store, and the fact that the complainant has rented it, aside from the presence of the jetties, are sufficient proof of

possession. It is insisted, however, that this possession was not peaceable. There is some evidence that there was a dispute between a Mr. Dick, the owner of a triangular piece of property within the riparian grant, and the Hendersons, who had disputed about the erection of the jetty. Proof is also proffered of the existence of injunction suits, to which Dick and Henderson, and to one of which McPherson, was a party. The answer, however, admits that there is no suit now pending to try the title to this property. Nor would the contest between Dick and Henderson have any relevancy upon the question of peaceable possession. The doctrine laid down in this court is that the peaceable possession required by the statute is not a possession which is peaceable as to third parties, but only peaceable as to the defendant; and, as to the defendant, that it is a possession undisturbed by any act of the defendant in or upon the locus in quo, for which act the defendant would be suable in an action by which the title to the property could be determined. Mere words denying the right of the complainant to possession, which afford the complainant no right to test the substance of such claims by an action at law, do not destroy the peaceableness of complainant's possession. The doctrine that the peaceable possession under the statute means peaceable possession as against the defendant, and not against third parties, is laid down in Allair v. Ketcham, 55 N. J. Eq. 169, 35 Atl. 900, and De Hanne v. Bryant, 61 N. J. Eq. 141, 48 Atl. 220. Now, the only feature in the case relied upon to show an interference by the defendant with the complainant's peaceable possession is the placing of a jetty outside of the bulkhead surrounding the defendant's lot, and the filling in between the jetty and the bulkhead with stone. This piling was put in, so far as appears, soon after the bulkhead was built, and so seems to have been placed before the riparian grant was made to either of the parties. Since these grants were made there is no evidence of any act by McPherson upon the locus in quo which disturbed the possession of the complainant or his grantors. So I am of the opinion that this court has jurisdiction.

Recurring then to the question tried, namely, whether the ordinary line of high water of the inlet reached the Vogler-McPherson lot on August 26, 1899, I am of the opinion that the probability is that it did not, and that it did not when Mr. McPherson got his riparian grant. It is quite clear that before this point of time, as well as after, the ordinary high-water line was some distance oceanward from the borders of the rectangu. lar lot sold to Vogler. While it is true that in 1889 and 1890 the storm tides and the extra high tides swept over a corner of the lot, I do not think that the ordinary tides reached it.

Such was the conclusion of Mr. Shinn, who went upon the ground and measured the lot at the time it was sold to Vogler. He

says, "We determined that there was a little more ground than we had agreed to sell to Mr. Vogler; that there was a little more landward of high water than we had agreed to sell to Mr. Vogler." Mr. Shinn then explains why certain language respecting the overflow of the tides was incorporated in the deed. If this was the condition of fact, as I am inclined to believe it was, then the riparian grant to the complainant is good, and the grant to the defendant is a nullity. According to the testimony of defendant's witnesses, the ordinary high tides reached only the southeasterly corner of the Vogler lot, leaving land belonging to the complainant lying along both the east and the south sides of that lot. Now, the right to a riparian grant, like the right to wharf out, must be exercised by keeping within side lines, at right angles with the high-water line, if that is straight, and, if the high-water line is curved or irregular, then within side lines which divide the fore shore proportionately among the littoral owners. Upon this theory, nelther of these grants was accurately made, if the defendant's witnesses are assumed to state the facts correctly.

It is to be further observed that the deed to Vogler contained the following provision: "Subject to the overflow of the ocean tides, and upon condition that the grantee herein, his heirs or assigns, acquire no right to accretion or riparian grant." Why future accretions may not be the subject of a bargain which equity will enforce, I am unable to see. Inasmuch, however, as this clause was not argued by the counsel for the defendant, I will leave the case standing upon the grounds already indicated.

I will advise a decree in accordance with the prayer of the bill.

certain time a certain witness saw the plaintiff at a residence in Paterson, but it is not clear whether that was his residence or the residence of his father. In any event, that is but a single instance, and in no way controlling upon the question of the plaintiff's residence.

By section 202 of the practice act (Revision of 1903, p. 590), it is enacted that in transitory actions the case shall be tried in the county in which the cause of action arose, or the plaintiff or defendant reside at the time of instituting such action. No length of residence is required for any definite time prior to instituting the suit; if there be actual residence at the time of the institution of the suit, the case may be tried in the county where the plaintiff thus resides. Residence under the statute, therefore, for the purpose of fixing the venue, means actual residence at the time of the institution of the suit, and actual residence is such resldence as was defined by Judge Dayton in this court in Cadwalader v. Howell, 18 N. J. Law, 138. The county where a man therefore claims his actual residence to be, and in which he is actually resident at the time of the commencement of the suit, is one of the counties in which the plaintiff has the right to lay his venue for the trial of the action.

The motion to change the venue in this case is denied.

act. This act of 1903 (chapter 266) is a supplement to the general election law of 1898 (Laws 1898, p. 237, c. 139), which relates expressly only to services performed under the provision of the act of 1898, and not to the election on the constitutional amendments.

The relator is entitled to no more than the fees specified in chapter 177 of the act of 1903, and therefore the application for a maudamus is denied, with costs.

STATE v. SIMON. SAME v. KREYER.

(71 N. J. L. 142)

(Supreme Court of New Jersey. June 13, 1904.)

OF ACCOMPLICEHARMLESS ERROR-COMMENTS OF JUDGE. 1. Upon the trial of an indictment for the unlawful receiving of stolen goods, etc., a defendant previously convicted of the larceny testified On behalf of the as a witness for the state. defendant on trial, the court was requested to charge that there must be corroborative evidence of an accomplice before the jury can convict upon his evidence alone. The request was refused. On error it was held that the refusal was not ground for reversal, the rule being that, although the practice of the courts is to advise juries not to convict on the uncorroborated testimony of an accomplice, yet a conviction founded on such evidence is strictly legal.

CRIMINAL LAW-EVIDENCE

2. Where it clearly appears that testimony illegally admitted in the trial of a criminal cause could not have injuriously affected the defendant, the admission of such illegal testimony does not constitute a ground for reversal.

3. Where a trial judge leaves it to a jury to determine disputed questions of fact, his comments and expressions of opinion upon the testimony are not assignable for error.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Passaic County.

Jacob L. Simon and Frederick L. Kreyer were convicted of receiving stolen goods, and bring error. Affirmed.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, PITNEY, and HENDRICKSON, JJ.

Z. M. Ward, Vivian M. Lewis, and John Eugene M. Ward, for plaintiffs in error. Emley, for the State.

HENDRICKSON, J. The defendants were convicted in the Passaic quarter sessions of the crime of unlawfully receiving stolen goods, knowing them to have been stolen, and they bring error. They were indicted separately, but the offense charged grew out of a single transaction, and the two indictments by consent were tried together. The entire record has been brought up, pursuant to section 136 of the criminal procedure act (P. L. 1898, p. 915).

A brief statement of the facts may be desirable before discussing the exceptions. The silk mill of J. B. Ryer, Son & Co., of the city

1. See Criminal Law, vol. 14, Cent. Dig. § 1124.