The meritorious question is whether the prosecutors can be assessed for the grading of a street called Myrtle avenue, which does not correspond exactly with an old road laid out by surveyors, but had come to be known by the name, when the petition for the improvement refers to the street proposed to be improved as a public road already laid out.

The evidence satisfies me that the improved street does in fact vary from the lines of the old road, and I incline to think the witnesses are right who make this variance as much as one hundred feet at the extreme point. All of the prosecutors, however, knew of the line on which the street was to be improved and made no objection on that ground. They acquiesced in the improvement upon the lines which were actually followed. I think that after the town has spent the money, it does not lie in the mouth of the prosecutors to object on this ground. The only difficulty I have had has been with the question whether the prosecutors could be assessed for the improvement in case the land was private property and not a public road. It would be hard to say that landowners should be assessed for benefits if the owners of the land which was taken had still the title and could exclude the public from the improved street. The facts, however, are such that this difficulty disappears. The variance from the lines of the old road is through the lands of Payne, Gillman and Hummell. Payne assisted in finding a monument from which the new survey was run and sought and obtained, from the contractor, top soil from the road as improved, and subsequently conveyed to the Alpha Investment Company by a deed which recognized Myrtle avenue as graded as a monument. Gillman knew of the proposed location, and when she made objection to the making of the same, put her objection on an entirely different ground. After the grading was completed, she conveyed part of her land to Gilbert by a deed, which adopted Myrtle avenue as graded as a monument and conveyed "subject to the rights of the town of Bloomfield, in Myrtle avenue for public purposes, if any said town has." Gilbert conveyed a portion of the tract so conveyed by a deed,

which adopted as a monument Myrtle avenue as now opened and now monumented. Hummell was taken over the proposed line of the improvement, knew where it was to be and raised no objection. These facts suffice to effect a dedication as against all the landowners through whose land the line of the street as graded runs, under the rule of Smith v. State, 3 Zab. 712. Kiernan v. Jersey City, 11 Vroom 483, and O'Brien v. King, 20 Id. 79, are illustrations of the application of the rule. In the words of Justice Lippincott in New York and Long Branch Railway Co. v. South Amboy, 28 Id. 252, 258, there has been an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by a denial or interruption of enjoyment.

Another consideration leads to sustaining the assessments against Payne. His deed to the Alpha Investment Company, made after this assessment was confirmed, conveyed "subject to assessment for changing and grading Myrtle avenue." He thus recognized the changed line of the avenue and the existence of the assessment.

It is suggested also on behalf of Gilbert that she is not assessable because her land does not abut on Myrtle avenue as graded, since the old road lies between. Such is not the fact. Her grantor, Gillman, owned on both sides of the old as well as of the new road, and therefore had the fee subject to the public easement. She conveyed to Gilbert bounding on the new road. But even if she had conveyed bounding on the old road, Gilbert would have owned to the centre of that road, which for a part of the distance would carry her to the line of the new road, and there is nothing to show that the assessment exceeds the benefits even under that aspect of the case.

The assessment must therefore be affirmed, with costs.

Goldberg v. West End Homestead Co.

78 N. J. L.

HARRIS GOLDBERG, BY HIS GUARDIAN, DEFENDANT IN ERROR, v. WEST END HOMESTEAD COMPANY, PLAINTIFF IN ERROR.

Submitted March 19, 1909-Decided June 7, 1909.

In a suit by the guardian of a lunatic to recover money paid by the lunatic upon a contract for the sale of land, the trial judge properly charged that knowledge of the insanity by the defendant must be proved, and that if the plaintiff was entitled to recover, interest should be allowed from the date of the payment, but commissions upon the sale paid by the defendant should not be charged against the plaintiff.

On error to the Essex Circuit Court.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER.

For the defendant in error, Michael J. Tansey.

For the plaintiff in error, Riker & Riker.

The opinion of the court was delivered by

SWAYZE, J. This was an action to recover back money which had been paid upon a contract for the sale of land, upon the ground that the plaintiff was a lunatic at the time of the contract and of the payments made thereon. The payments were made in June, 1906. An inquisition in lunacy taken in March, 1907, found that he had been a lunatic since March, 1906, and, in addition, there was medical testimony justifying the inference that he was a lunatic at the time the contract and payments were made. The trial judge properly charged that it was necessary for the plaintiff to prove that the defendant had knowledge of the plaintiff's insanity, but the case was tried apparently upon the theory that if the lunacy was established it was enough to justify recovery. The plaintiff moved to nonsuit and relied entirely upon the fact that the decrce in the lunacy proceedings, which was

49 Vroom.

Goldberg v. West End Homestead Co.

made May 28th, 1907, adjudicated that the plaintiff had been insane for only eleven months prior thereto. No other ground was specified. We agree with the trial judge that the inquisition was prima facie evidence of the lunacy, but if not, there was still sufficient evidence to require the submission of the case to the jury. The point that there was no evidence of knowledge of the lunacy on the part of the defendant was not raised at the trial. We think also that the trial judge was right in excluding evidence of business transactions by the plaintiff several months after the date in question. The fact that he transacted other business at those times is too remote to indicate anything as to his mental condition at the time of the transactions with the defendant. The trial judge was also right in allowing interest from the date of the payments. If the defendant knew of the plaintiff's lunacy, as the jury have found, it had no right to take his money. Having taken it under circumstances which justified his reclaiming it, they are chargeable with interest. The same reasoning prevents them from being credited with the amount they had paid out for commissions on the sale of the property, for nothing could justify them in spending what they knew to be the lunatic's money.

We said in Miller v. Barber, 44 Vroom 38: "Payment or tender of the consideration money received by the lunatic, less any proper offsets, is a condition precedent to the avoidance of the contract." In this case the lunatic had been in possession of the premises for some three months and had collected the rents. These rents ought to have been tendered before the suit was begun, but no question of that kind is raised by this record. The course pursued by the plaintiff in error precludes a consideration of this question, for the reason that its counsel requested a charge that the jury must put the defendant in the position it was in before the contract was made. This is a very different proposition from the rule of Miller v. Barber, requiring a tender of the consideration at the time of rescission; that is, prior to the commencement of the action. It is argued by the brief for the plaintiff in error that it should be credited with all of the rents which were collectible, whether

Jersey City v. North Jersey Street Ry. Co.

78 N. J. L.

they were collected or not. This question also is not presented by the record. On the contrary, the request to charge was that if the jury found in favor of the plaintiff they must put the defendant in the position it was in before the contract was made, and that is, the plaintiff must pay the commission of $360 and refund the rents collected by or for him, and that these sums ought to be deducted from the $2,000. This request was erroneous in that it claimed the allowance for the commissions, but even if that had been omitted, it requested only that the defendant should be credited with the rents actually collected by or for the plaintiff. The judge charged that the rents received by or for the plaintiff must be deducted, and the jury seem to have done so, for the verdict was for the exact amount which had been paid without any allowance for interest. The interest, in fact, was a little more than the rents actually collected. We find no error in this record, and the judgment is affirmed, with costs.

MAYOR AND ALDERMEN OF JERSEY CITY v. NORTH JERSEY STREET RAILWAY COMPANY.

Argued February Term, 1909-Decided July 16, 1909.

1. A municipal corporation cannot, without express legislative authority, release a private corporation from an obligation to pay license fees to the municipality.

2. The failure for many years of a municipal corporation to collect license fees due from a private corporation does not warrant a presumption of a release when the municipal corporation is without express legislative authority to make a release.

3. A traction company organized under the act of 1893 which has succeeded to the rights of a street railway company after the charter of the latter has expired, is nevertheless liable for the payment of license fees due the municipality from the street railway company.

4. Where a street railway company continues after the expiration of its charter to exercise the same rights in the public streets that it had previously exercised, it remains liable to pay license fees under a previous contract with the municipality.