by Dr. Hull to confirm the report the result was as follows: Aye" (then follows the names of all the members present, voting in the affirmative).

The statute, as will be observed, 'requires an adoption and the confirmation of report of the commissioners. The statute does not prescribe the manner in which the adoption and confirmation shall be expressed. It can therefore be indicated by ordinance or resolution, and the point made is that it was not done even by resolution, which means that the motion and the affirmative vote thereon was not a resolution. But it is obvious that the adoption of the report was the expressed sentiment of the members of the common council.

Although the word "resolved" was not employed by the common council, nevertheless, in the language of Mr. Justice Van Syckel, in his opinion in Pierson v. Dover, 32 Vroom 404, it was none the less a proceeding resolved upon by the common council by whatever name it may be called. The point made is untenable.

The only other question is whether the assessment for benefits is for an excessive amount. A careful consideration of the testimony fails to show that any erroneous legal rule was adopted by the commissioners in arriving at the amount assessed. Nor can we say that the discretion with which the commissioners are invested in estimating the degree of benefits to the land of the prosecutor, from the opening of the street in question, was abused.

The confirmation of the report must be affirmed.

SAMUEL H. BARRISH, PLAINTIFF AND APPELLEE, v. CHARLES S. ORBEN, DEFENDANT AND APPELLANT.

Submitted December 4, 1908-Decided June 7, 1909.

1. Where it is necessary for a party, in order to maintain the issue, to prove several facts, the court should admit any legitimate evidence tending to establish either fact.

2. Where the plaintiff testified to transactions with one Runyon as with the agent of the defendant, it was error to exclude crossexamination tending to show that he knew he was dealing with Runyon as with a principal or with him as the agent of another than the defendant.

On appeal from the First District Court of the city of Newark.

Before Justices REED, TRENCHARD and MINTURN.

For the appellant, Prout & Prout.

For the appellee, Philip J. Schotland.

The opinion of the court was delivered by

TRENCHARD, J. This action was brought in the First District Court of the city of Newark, by Samuel H. Barrish against Charles S. Orben, to recover damages for the breach of a contract which the plaintiff is alleged to have had with the defendant for the painting of houses belonging to the defendant.

The learned trial judge, sitting without a jury, rendered judgment for the plaintiff, and from that judgment the defendant appeals to this court.

The testimony at the trial showed that the plaintiff, Barrish, was a painter; that he submitted to one Runyon a written signed estimate of the amount for which he agreed to furnish the material and labor necessary to do the painting of ten houses; that later he worked upon the houses of the defendant until he was stopped. It was to recover for such painting that this suit was brought.

The written estimate upon its face does not show to whom it was submitted nor upon whose houses the work was to be done, nor does it show acceptance. According to the plaintiff's contention, which there was evidence tending to support, Runyon was the agent of the defendant, and the defendant was present when the estimate was submitted to Runyon. According to the defendant's contention, which there was also

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testimony tending to support, the defendant was not present, and had no knowledge of the transaction, and Runyon was not his agent but was acting on his own account. It also appeared in evidence that Runyon had a sub-contract to do the painting in question from one Frank G. Orben with whom the defendant had contracted for the erection and finishing of the houses.

To maintain his defence, therefore, it was material and relevant for the defendant to show, not only that Runyon held the contract for the painting in question, but also, if he could, the time when his contract was entered into and that the plaintiff had knowledge of it. These things he attempted to show, but the testimony was excluded by the trial judge, and the defendant assigns such action, among others, as causes for reversal.

We think the trial judge erred in overruling the question put by the defendant to Frank G. Orben, as to the time when he sub-let the contract for painting to Runyon. It was one of several facts necessary for the defendant to prove in order to maintain the issue which he had tendered.

We think, also, that the trial judge erred in overruling the cross-examination of the plaintiff as to whether he knew there was a contract between the defendant and Frank G. Orben which included the painting in question. The plaintiff had already testified in effect that he was dealing with Runyon as the agent of the defendant. The question propounded was manifestly designed to elicit the fact that the plaintiff knew he was dealing with Runyon either as agent of the contractor or as a sub-contractor, and not with him as the agent of defendant, for such knowledge might be inferable from plaintiff's being aware that there was a contract between the defendant and Frank G. Orben which included the painting in question. Colloty v. Schuman, 44 Vroom 92.

The judgment of the court below must be reversed and a venire de novo awarded.

49 Froom.

Chester v. Cape May Real Estate Co.

IDA CHESTER, ADMINISTRATRIX, &c., v. CAPE MAY REAL ESTATE COMPANY.

Submitted July 3, 1908-Decided July 21, 1909.

In an action to recover damages for the death of the plaintiff's intestate, where the fact is that the injury resulting in death was occasioned by one of two causes, for one of which the defendant is responsible, and for the other not, the plaintiff must fail if his evidence does not show that the injury was produced by the former, or if it is just as probable that it was caused by one as by the other.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices TRENCHARD and MINTURN.

For the plaintiff, John W. Wescott.

For the defendant, J. Spicer Leaming and Gaskill & Gas

kill.

The opinion of the court was delivered by

TRENCHARD, J. This action was brought by the administratrix of Arthur S. Chester against the Cape May Real Estate Company to recover damages for his death, caused by asphyxiation while working in a sewer.

The plaintiff's intestate was working for the Etter Erecting Company. This company was constructing a sewer for Cape May City along Beach avenue, in that city. On August 13th, 1906, the day of the accident, the sewer was still unfinished and had not been turned over to the city. The work consisted of a large trunk sewer from twenty-four to thirty inches in diameter, which began at a manhole at Baltimore avenue and extended westward two thousand five hundred or three thousand feet at a depth of from fourteen to sixteen feet below the surface of the ground. The land through which the sewer extended was meadow or marsh land, which had been

Chester v. Cape May Real Estate Co.

78 N. J. L.

filled over to a depth of four feet by sand pumped from the inlet or harbor. Three days before the accident the defendant company began the construction of a lateral house sewer which opened into the manhole of the trunk sewer at Baltimore avenue. For this purpose an opening eight inches in diameter was cut in the manhole about five or six feet below the surface of the ground into which the lateral pipe was inserted, and ditching for this lateral sewer was carried back towards the house, but the connection with the house had not been made at the time of the accident. On the day of the accident the plaintiff's intestate attempted to plug this lateral sewer from the inside of the manhole so as to prevent water flowing into the trunk sewer through this connection. Almost immediately upon entering the manhole for that purpose the plaintiff's intestate was asphyxiated with gas, and this action was brought to recover for his death.

The trial at the Cape May circuit resulted in a verdict for the plaintiff and the defendant obtained this rule to show cause why the verdict should not be set aside.

Among the reasons assigned for a new trial are the refusal of the trial judge to grant the defendant's motions to nonsuit the plaintiff and to direct a verdict for the defendant.

These motions were grounded upon the reason that the evidence failed to show that the injury resulting in the death was occasioned by negligence upon the part of the defendant. We think the motions should have been granted.

The evidence taken at the trial tended to show that the meadows adjacent to the sewers generated hydrogen sulphite gas, and that the presence of such deadly gas in the manhole caused the death of plaintiff's intestate.

It was the contention of the plaintiff that the gas was introduced into the manhole through the inlet cut by the defendant company, which inlet it was further contended was made unlawfully.

Assuming, but not deciding, that the evidence showed that the opening was made in the manhole without authority, we are unable to find from the evidence that the opening was responsible for the presence of the gas.