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49 l'room.

Harrington's Sons Co. v. Jersey City.

a contiact or contracts, not exceeding the term of five years at a time, with any corporation or individual for the collection or removal of ashes and the collection, removal and disposal of garbage, and it shall be the duty of such common council, board of aldermen or other governing body of such city, during the continuance of such contract or contracts, to annually raise, by taxation, the sum needed to defray the expenses of such collection and removal of ashes and such collection, removal and disposal of garbage for the fiscal year then next ensuing provided such contract or contracts shall be entered into and made only after bids therefor shall have been advertised for in one or more newspapers published or circulating in said city for at least two weeks prior thereto, and then only with the lowest responsible bidder or bidders who shall give satisfactory bonds or security for the faithful performance of the work.”

There is nothing in this language to support the contention that a contract for one year is not within its purview. The limitation is that the contract shall not exceed five years. This includes a contract for one year as completely as it does one for five years. The circumstance that some of its provisions are for contracts of more than one year does not nullify the expressed scope of the act.

In Faist v. Iloboken. 13 V room 361, in which the Supreme Court held that this act applied, and in Townsend v. Atlantic City, Id. 474, in which this court said that it applied, the contracts in each case were for one year.

If the Garbage act of 1902 applies to all contracts for a period not exceeding five years, it, by implication, repeals or is substituted for the charter provision of Jersey City upon the same subject upon the familiar doctrine that when the legislature frames a new and general rule covering an entire subject-matter all earlier and different rules touching the same matter are to be discarded in favor of such later rule. Industrial School District r. Whitehead, 2 Beas. 290; Brachon r. Smith, 12 Stew. Eq. 169; DeGinther v. Non Jorsoy llome, 29 Vroom 351; Smith v. Ilightstown, 12 Id. 536.

Harrington's Sons Co. v. Jersey City.

78 N. J.L.

The charter of Atlantic City that was considered by this court in the Townsend case was passed on April 3d, 1902, i. l., after the passage of the Garbage act of March 27th, 1902, hence had the charter provided for the making of contracts it might have superseded the earlier act. Inasmuch, however, as it did not so provide there was no inconsistence as was pointed out by Mr. Justice Dixon in that case. The prosecutor's right, therefore, to be awarded the contract ought not to have been tested by the one hundred and fiftyninth section of the charter of Jersey City, viz., whether he hard "offered the terms most advantageous to the city,” but by the act of 1902, viz., whether he was in fact the lowest responsible bidder and could give a satisfactory bond. Justice Swayze, in his opinion, recognized and admitted that under the act of 1902 the plaintiff in error should have been heard before his bid was rejected. In this he was clearly correct. Faist v. lloboken, supra.

IIe also found, as a fact, that no such hearing was given to the rejected bidder. There was proof to support this finding, hence it is not only conclusive upon us, but also is conclusive of the case, as the court below recognized, if the act of 1902 was to govern.

The judgment of the Supreme Court is reversed and the award to Byrne set aside.

for aflirmance-None.

For reversal-- THE CHIEF JUSTICE, GARRISON, REED, TRENCILARD, PARKER, BERGEN, VOORHEES, MINTURN, BoGERT, VREDENBURGH, VROOM, GRAY, DILL, CONGDON, JJ. 14.

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PAUL NEMETH, DEFENDAST IN ERROR, V. SIMON SLAFF,

PLAINTIFF IN ERROR.

Submitted December 15, 1909—Decided February 28, 1910.

The trial judge, in giving his reasons for denying a request to charge

that "there was no evidence as to the amount of damages,” pointed ont certain factors in the testimony as showing the inaccuracy of the proposition of fact that he was requested to charze. Held, that, assuming that the language of the court would be erroneous as an instruction to the jury as to the legal rule respecting damages, it cannot be laid hold of to reverse the judgment for error, upon that aspect of the case, unless the attention of the trial court was called to such possible application of its remarks or to the danger of their being misappreliended in that respect.

On error to the Passaic Circuit Court.

For the plaintiff in error, Henry C. Whitehead.

For the defendant in error, Joseph H. Lefferts and Donald Lefferts.

The opinion of the court was delivered by

GARRISON, J. This writ of error brings up for review the rulings of the Passaic Circuit Court against the motion of nonsuit and the motion to direct a verdict in favor of the defendant, and also an exception predicated upon the language in which the refusal of the court to charge specifically a request proffered by the defendant was couched.

Generally stated the plaintiff's case was that at the time this cause of action arose the parties were the owners of adjoining real estate, that on the lot of the plaintiff was a three-story brick building, and that the plaintiff's lot extended back from his house on which were flowers, vegetables and herbage. That the defendant made an excavation on his lot for the construction of a four-story brick tenement-house, and that there was testimony from which

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the jury could find that the result of this excavation was the falling in of the plaintiff's garden and that the negligent manner in which the work was done injured the plaintiff's house.

The defendant's motion for a nonsuit and for the direction of a verdict were properly denied. The testimony raised controverted questions of fact upon all of the matters on which the plaintiff's right to a recovery and the defendant's claim to immunity from damages depended. The contention that a verdict should have been directed, because of the defendant's testimony that the excavation was made by an independent contractor, cannot prevail, inasmuch as there was also testimony that the defendant himself intermeddled with the work. This precise question was left to the jury, as one of fact, coupled with a statement of the law that if the evidence showed that the work was let out to an independent contractor the plaintiff could not recover from the defendant. As this statement was wholly favorable to the plaintiff in error, it is not necessary to determine its correctness as applied to the facts of this case.

The only remaining assignment of error to be considered is that based upon a bill of exceptions that presents the language used by the trial court in denying one of the requests to charge proffered by the plaintiff in error.

The request was "That there is no evidence before the jury in this case as to the amount of damage to the plaintiff's lot, and therefore the only damages which may be assessed are those to the building which may be found only in case the jury find that the work was done by the defendant negligently and carelessly."

It is admitted that this request was faulty and was properly denied, but exception was taken to the language in which the court couched its denial of the request. This is what the court said: “That request contains a number of propositions. I will have to separate it. Whether there is any evidence is not for the court to say. I cannot say there is no evidence before the jury in this case as to the amount of damage to the plaintiff's lot; I think there is, as a matter

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of fact. I think there is evidence upon which you can determine what the damage was to the soil. You have the value of the lot. For instance, we have the fact that part of the garden witli fowers and bushes on it were destroyed, sunk down. I think those facts alone would be quite sufficient for you to draw an inference as to the amount of damage in that respect. This request says that 'the only damages which may be assessed are those against the building is not true. It goes on to say, 'which may be found only in case the jury find that the work was done by the defendant negligently and carelessly.' I think I will not charge that.”

If this language had been used by the court as laying down a legal rule as to the quantum of proof required of the plaintiff, or if it had been used in response to a request to charge upon that aspect of the case, there would be much force in the contention that the entire rule, and, consequently, the correct rule, had not been charged. That, however, was not the situation. The judge was asked to charge that there was no evidence upon this point. To refute this proposition and to point out its inaccuracy the judge ran over certain factors in the testimony for the purpose, not of saying that they constituted adequate proof upon the point in question, but for the purpose of showing that they negatired the proposition of the request, viz., that there was no evidence. In view of the purpose for which it was used, therefore, the language of the court cannot be laid hold of to reverse this judgment. If counsel was dissatisfied with the charge upon the question of the quantum of proof required of the plaintiff, or if he deemed that the remarks of the judge (addressed apparently to counsel as the reasons for his ruling) might mislead the jury, the attention of the court should have been directed to the matter at a time when a fuller charge might lave been made or any misapprehension as to the scope of the judicial remarks have been cleared up.

Without further discussion therefore of the accuracy of the judge's language considered as a substantive charge, this assignment must be held to be inadequate to support a rerersal. The judgment of the ('ircuit Court is affirmed.

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