affirmative votes of six of the seven members of the board, one member being absent.

It further appears that a copy of the resolution adopted by the board was presented to the common council at a meeting of that body on the 4th day of August, 1908.

The act of April 3d, 1902, being chapter 108, reads as follows: "That in case the persons owning or representing more than a majority of the lineal frontage along the line of the street through which it is proposed to construct a sewer or drain object to the construction of the same in the manner prescribed in said act or supplements, the board having control of the streets of any (such) city may, notwithstanding such objections, proceed and construct said sewer under the act to which this is a supplement; provided, that the board of public health of any city in which it is proposed to construct said sewer or drain shall certify, in writing, to said board having control of the streets of any (such) city, that a resolution has been unanimously adopted by said board of health, that it is the opinion of said board that the construction of said proposed sewer or drain is necessary to preserve the public health."

This act is a supplement to the act of March 8th, 1882, the second section of which provides, among other things, that when "persons owning or representing more than one-half of the lineal frontage of land along any street, through which it is proposed to construct any lateral sewer or drain, shall present their objections in writing, then such proceedings shall cease."

On the 20th day of October, 1908, the persons desiring the construction of this sewer presented another petition to the common council requesting its construction, and on that date another notice of the intention of the common council to make the improvement was ordered to be published.

In response to the notice last above mentioned, the owners of more than one-half of the lineal frontage of land along said sewer again filed their written objections with the city clerk within the time prescribed by law.

At a meeting of the board of health held on the 14th day of November, 1908, another resolution was adopted declaring that, in the opinion of the board, such sewer should be constructed, the same being.necessary for the preservation of the public health. This resolution was adopted by the affirmative vote of six of the members of the board, one member again being absent. A copy of the resolution last above referred to was presented to the common council at a meeting held on the 17th day of September, 1908, whereupon the common council assumed jurisdiction and passed the ordinance authorizing the construction of said sewer, on the 15th day of December, 1908.

Among the reasons filed by the prosecutor for setting aside this ordinance are the following: Because neither the resolution passed by the board of health on the third day of August, 1908, nor the resolution passed November 14th, 1908, was unanimously adopted by said board, and because the board of health of the city of Trenton, in adjudging the necessity of the proposed improvement was acting judicially and the prosecutor was entitled to notice and an opportunity to appear before the said board and be heard in respect thereto, which notice was not given, nor was such opportunity afforded.

Before Justices GARRISON, BERGEN and VOORHEES.

For the prosecutor, Martin P. Devlin.

For the defendants, William E. Blackman.

The opinion of the court was delivered by

GARRISON, J. A unanimous vote of all of the members of the board of health is not required by the statute, but only that the "resolution be unanimously adopted by the said board of health." Granted, therefore, a board of health legally constituted and the adoption of the resolution, all present voting and none dissenting, and the statute has been complied with. This distinction is pointed out by Mr. Justice Fort in Crickenberger v. Westfield, 42 Vroom 467.

The other reason urged for vacating the ordinance is good. The owners of property who, by filing their objections under the statute, had held up the action of city council, should have had notice and an opportunity to appear before the board of health when that tribunal had under consideration the question of fact upon the determination of which the controversy between the city and the property owners depended. Even the written objections that had been filed before council do not appear to have been referred to or considered by the board of health. In view of the legislative scheme and the situation of the contending parties the action of the board of health was distinctly judicial in character, i. e., it was the decision of a question of fact affecting directly and financially a known class of citizens; it was not the adoption of a general scheme of legislation. The effect of the determination by the board of health was to settle an existing controversy, the result of which was to impose a special burden upon one of the contesting parties, i. e., the landowners. The case indeed goes beyond that of Sears v. Atlantic City, 44 Vroom 710, in that here two clearly-defined parties were lined up on a well-defined issue made by written objections filed as part of this statutory proceeding. The opinion that settles such a controversy must, in our judgment, be upon notice to the objectors. By the very act of availing themselves of the statutory right to object the objectors acquired a status that entitled them to notice just as by filing remonstrances to the granting of a license the remonstrants acquire a status that entitles them to sue out a writ of certiorari.

The ordinance brought up this writ, being based upon a certified opinion of the board of health that was itself improperly given, must be set aside.

ELIPHET DECAMP, APPELLANT, v. MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK, APPELLEES.

Submitted March 19, 1909-Decided June 23, 1909.

A mechanic or day laborer employed by the superintendent of buildings of the city of Newark to assist in the administration of the police power under section 111 of the revised ordinances of that city may, for assistance so rendered, maintain an action against the city without regard to whether or not the superintendent had followed the procedure laid down in other sections for the protection of property owners and for the determination of their rights as between them and the city.

On appeal.

Before Justices GARRISON, BERGEN and VOORHEES.

For the appellant, Frederic M. P. Pearse.

For the appellees, Francis Child, Jr.

The opinion of the court was delivered by

GARRISON, J. The plaintiff in the District Court having been nonsuited brings this appeal. The action was against the city for work ordered by the superintendent of buildings. This official testified at the trial that while in office he employed the plaintiff to do the work for the price of which this action was brought, and also that the building on which the work was ordered to be done was dangerous to the public and that the work was done under his supervision and was properly done. The plaintiff testified to the doing of the work, and that an estimate had first been given to the superintendent of buildings, at whose instance at the conclusion of the work a bill therefor had been presented to the owner of the building who had paid $50 which plaintiff credited on his bill. The dangerous condition of the building to the public was testified to by the inspector of buildings, who also said that the

price charged by the plaintiff was reasonable, in fact, was low. A nonsuit was asked for on two grounds-first, that by rendering a bill to the owner and accepting something on account the plaintiff was debarred from recovering the balance from the city. This obviously cannot be so. If the city was liable for the whole bill the circumstance in question does not discharge it from liability for part of the bill.

The only other ground urged for nonsuit was that the work was unnecessary and was ordered by the superintendent in excess of his authority, which was limited to cases where buildings were dangerous to the public. This ground for nonsuit could not be sustained since it was directly in the face of all of the testimony. These being the sole grounds on which a nonsuit was asked, the court ordered that the plaintiff be nonsuited because the superintendent of buildings had not followed the procedure provided in certain sections of the city ordinances, notably section 99. This section, which is evidently intended for the protection of the rights of the owners of buildings and as a condition precedent to the action against them for reimbursement that the city is authorized to bring, provides for an adjudication of facts by common council and a judgment supported by a two-thirds vote of that body. Whether any such proceeding was had in the present case we are not informed, as the matter was not made the subject of inquiry at the trial or raised on the motion to nonsuit. In the absence of the owner of the building the pertinence of such proceeding is not apparent. Section 111, which was mentioned on the trial as the section under which the superintendent of buildings proceeded, authorizes that officer, in cases where buildings are dangerous, to enter upon the premises and "with such assistance as may be necessary, and cause the said structure to be made secure or taken down at the expense of the owner or party interested." Section 103 provides greater details for the safeguarding of the rights of property owners in cases that come within its purview. Whether the city can successfully charge the property owner with the expenses incident to the carrying out of an order of its super