fied in such a way that the city cannot law-made, but they are without substance. It is fully accept it. said that, while the will of Mrs. Hayes confers a general power of appointment, that of Howard Hayes does not. One has only to read it to see that the power conferred is, in terms, unlimited: The first objection is not supported by the authorities. The law is clear that, while the donee of the power may not exceed the authority conferred, he may, unless there are words of restriction, appoint a lesser estate "All the rest and residue of my estate I give to such than that authorized (Kent, Com. vol. 4, par. (after the death of Alice) 345), and may carve out of the fee, estates as she (Alice) shall by her last will and testaperson or persons, corporation or corporations for life and in remainder (Lugden on Pow-ment in writing appoint." ers, vol. 1. *p. 471, 496 [7th Ed.]; Bovey v. Smith, 1 Ver. 84; Thwaytes v. Dye, 2 Ver. 80; Alexander v. Alexander, 2 Ves. Sr. 639; Wilson v. Wilson, 21 Beav. 25; Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368; Re Appleton's Appeal, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925; Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589). The objection that Newark cannot, because of the condition, lawfully accept the gift, is equally untenable. It seems to be founded on the notion that Newark must, in accepting, contract to do that which the law will not permit it to do, viz., agree that it will always call the park, Hayes Park, and will never devote it to any other use. This, it is said, the statute (C. S. 4146, § 18) forbids, when it provides that, whenever any land in use for a public park may be required for use as a public highway or for any other public use, "It shall be lawful for the municipal or other authority * having the title, use, management or control thereof, to consent to the use of the same for such new public use." It may be true that Newark cannot agree that the land appointed shall “be used for a public park and for that use only forever." But it is not called upon so to agree. It simply takes the estate given to it, that is, a qualified fee which will revert to the heirs of the donor, when the particular use is discontinued. Numerous illustrations may be found in our own reports, the most In noted being that of the Morris Canal. State v. Brown, 27 N. J. Law, 20, the deed granted the land to the canal company "as long as used for said canal," and Green, C. J., said: "By the terms of the conveyance the grantees take a qualified fee, liable to be defeated whenever they cease to use the land for the purpose specified in the grant. yet while the estate continues, and until the qualification upon which it is limited is at an end, the grantee has the same rights and privileges over his estate as if it were a fee simple." Other illustrations are found in Southard v. Cent. R. R. Co., 26 N. J. Law, 13; Cornelius v. Ivins, 26 N. J. Law, 376; Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N. J. Eq. 398, 15 Atl. 227, 1 L. R. A. 133. The word "forever" so commonly employed in conveyancing parlance emphasizes, but does not add to, the duration of the estate. The gift is, in the quaint language of the old cases, made to a body possessing immortality; that is, indefinite duration. [6] Then it is said the gift has failed because Alice's intention to exercise the power does not clearly appear. But it is evident that, by paragraph 8, she intended to exercise the power conferred by Howard's will and, by paragraph 10, the power conferred by Caroline's. She so expressly states. By the eleventh, which is the residuary clause, after giving all her estate to be held on the trust provided for in the ninth paragraph, she adds: "It being my intention hereby to vest in my executors in fee simple all the property not controlled by me at my death or which I have or herein before specifically disposed of, held or may have power to dispose of under the power of appointment in the will of my said brother (Howard) or in the will of my mother Caroline D. Hayes or in or under any other will or instrument or otherwise." Notwithstanding these explicit declarations, it is argued that Alice does not state that she is exercising her power of appointment in paragraph 9. She does, however, state, in paragraph 8, that she is disposing of the estate "given" to her, "pursuant to the power conferred" by her brother's will, and what she "gives" by paragraph 9 is a part of this estate. The two tracts of land described in paragraph 9 belonged to her father. On his death and Alice. By Mary's will, as has been alintestate, they descended to Howard, Mary, ready shown, her share, subject to her husband's life estate, vested in her daughter Mary. On Mary's death her share went, half to Howard and half to Alice; so that Howard and Alice became each entitled to an undi vided half. Then Howard died and gave Alice the power of appointment in question. Paragraph 9 reads: "I give and devise to my executors hereinafter named all my right, title and interest both that held by me or due me or which will become part of my estate on the termination of the life interest therein of my brother-in-law, Louis Pennington, and the termination of the life interest therein of my said sister-in-law, Mary Vanderpool Hayes, given to her in paragraph eight of this will in the two tracts of land and premises in said city of Newark," etc. This paragraph, it will be observed, refers: First, to the title and interest originally her own, viz. one-third; second, to the title and interest of the deceased child Mary, to become part of her estate in possession on the termination of the life interest of her brother-in-law, an interest which he could claim either as tenant by the curtesy or under his made, fixing a day for hearing, held that the of a summary nature, and the failure of the proceedings under the act are intended to be petitioner to move the hearing during the interim warranted the defendant in concluding that the proceeding had been abandoned, and the order, fixing a day under the circumstances, is set aside. est which she had derived from Howard-out period of over 12 months, when an order was of which, he having failed to make provision for his wife (his will antedating his marriage), Alice had given to her a life right, to carry out what she believed to be Howard's wish, defectively expressed in an unexecuted paper. As the result of this analysis, I think there can be no reasonable doubt that what Alice intended should pass under clause 9 was Howard's interest as well as her own. She does not perhaps, in apt language, expressly appoint this interest, but she says in [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 409.] Certiorari to Court of Common Pleas, Middlesex County. Works for certiorari to Theresa Liquor and Proceedings by the Ringwalt Linoleum others, to review an order, relating to trial of a case under the Workmen's Compensation Act. Order set aside. Argued June term, 1916, before SWAYZE, MINTURN, and KALISCH, JJ. Bedle & Kellogg, of Jersey City, for prose cutor. George L. Burton, of New Bruns paragraph 8 that she intends to dispose of What is so given, she then gives for life to his widow, with a remainder in trust for Newark. Can anything be clearer than that by "give" she means "appoint"? But if Howard's interest in the land does not pass under paragraph 9, it does, beyond all manner of doubt, by paragraph 11. It is argued that, if it passes under this clause, it creates an impracticable situation; that, only an undivided half being given by paragraph view an order of the Middlesex pleas, reMINTURN, J. The writ is intended to respecting the trial of a case under the Workmen's Compensation Act, between the parties hereto. The difficulty presented arises from the failure of the parties to enter upon the record the various orders of continuance. The petition was filed on January 27, 1914, and an order was thereafter made, fixing Febru ary 20, 1914, for the hearing. The trial was thereafter continued by orders regularly entered until June 2, 1914. A lapsus is then presented until September, 1915, during which interim no action was taken by either party, and no further order was entered. Upon the latter date the common pleas, against the objection of the prosecutor, made an order, fixing September 25, 1915, as the day for hearing, and the present writ was allow 8, the other undivided half must be devoted to grading, beautifying, and maintenance. I very much doubt whether this is the reasonable construction or effect of paragraph 11; but its construction in this regard is imma-ed to review the legality of that order. Upterial, if Howard's interest in the two tracts passed under paragraph 9, as I have found that it did. RINGWALT LINOLEUM WORKS ▼. LIQ- (Supreme Court of New Jersey. Nov. 10, (Syllabus by the Court.) MASTER AND SERVANT 409- WORKMEN'S COMPENSATION ACT-PRocedure. on this proceeding we are concerned only with the record of the common pleas removed by this writ. Moore v. Hamilton, 24 N. J. Law, 532. If that record be deficient in any respect it is within the province of either party to allege diminution and supply the deficiency. The certified record shows no entry of an order of continuance during the period to which reference has been made, and our consideration of the case must be based upon the status thus presented. The proceedings under review are statutory in their origin, and are intended to be summary in their nature and conduct. Baur v. Common Pleas, 95 Atl. 627. The twentieth section of the Workmen's Where a petition was filed under the Work- Compensation Act (P. L. 1911, p. 142), promen's Compensation Act (Act April 4, 1911 vides that after the filing of the petition the [P. L. p. 134]), and a day was thereafter fixed judge of the common pleas shall fix a time for hearing by the court, and the hearing was and place for hearing, not less than three continued by an order regularly entered until June, 1914, and nothing further was done there- weeks after the date of filing the petition, after until September 25, 1915, involving a and requires him to file his determination the testimony of the physician, if it had been admitted and had tended to contradict the prosecutrix, would have had a legitimate bearing upon the credibility of the prosecutrix as a witness. [Ed. Note.-For other cases, see Rape, Cent. Dig. § 65; Dec. Dig. 43(2).] 3. WITNESSES 387-CREDIBILITY - CROSS EXAMINATION-EVIDENCE. Upon the trial for carnal abuse of a female child it is erroneous to exclude the cross-examination of the prosecutrix as to whether she had had committed the assault upon her, the quesnot said that a man other than the defendant tion being put and being competent as affecting her credibility as a witness. within 30 days after final hearing. It is fur- | intercourse was not essential to conviction, yet ther provided that "at the time fixed for hearing, or any adjournment thereof," the judge shall hear the witnesses, and "in a summary manner decide the merits of the controversy." The manifest and clear intent of the act is to secure that inexpensive and expeditious determination of the controversy which theretofore was claimed to be a fatal defect in existing legal procedure. The procedure followed in the case at bar obviously violates the spirit of the act. The proceedings being entirely statutory, it was incumbent upon the petitioner to present her case upon the day fixed for hearing, or to continue it by stated adjournments in regular manner upon the records of the court, either by consent of the defendant, or by an application made upon notice to the other side, so that the defendant would have notice of the proceeding, and be cognizant of the status of the case. To countenance this application after 12 months have expired since the last regular step was taken in the proceeding is, in effect, to ignore the very purpose of this legislation, and to give to the party in laches an advantage which he could not have attained under legal procedure as it existed anterior to this enactment. Wolf v. Watson & Co., 79 N. J. Law, 284, 75 Atl. 436. There is always, of course, the consideration to be noted, in such a situation, as is presented by this record, that the adverse party, deeming the proceeding to have been abandoned, may find it difficult, if not entirely impracticable, to procure the witnesses to the controversy, who when the petition was filed may be presumed to have been readily accessible. These considerations lead us to conclude that the order brought up for review must be set aside. (89 N. J. Law, 418) STATE v. BLOOM. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1228-1232; Dec. Dig. 387.] 4. CRIMINAL LAW 369(8) - ADMISSIBILITY OF EVIDENCE-OTHER OFFENSES. Upon trial for carnal abuse of a female child, it is erroneous to permit the state to prove other criminal acts of the accused with others than the prosecutrix, not a part of the res gestæ, and having no logical relation to the crime charged except that they may have all resulted from the criminal disposition of the accused. [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 822, 823; Dec. Dig. 369(8).] Error to Court of Quarter Sessions, Hudson County. Abraham Bloom was convicted of carnal abuse of a female child, and brings error. Reversed, and venire de novo awarded. Argued June term, 1916, before GUMMERE, C. J., and TRENCHARD and BLACK, JJ. Alexander Simpson, of Jersey City, and William M. Atkinson, of Newark, for plaintiff in error. Robert S. Hudspeth, Prosecutor of Pleas, and George T. Vickers, Asst. Prosecutor of Pleas, both of Jersey City, for the State. TRENCHARD, J. The defendant was indicted for and convicted of the carnal abuse of a female child, and this review is under sections 136, 137, of the Criminal Procedure (Supreme Court of New Jersey. Nov. 13, 1916.) Act (Laws 1898, p. 866). (Syllabus by the Court.) Complaint is made that the learned trial 1. RAPE 42-PROSECUTION-ADMISSIBILITY judge erred in excluding proof of defendant's OF EVIDENCE. Upon the trial of an indictment for the carnal abuse of a female child, it is the right of the accused to prove his reputation for morality current in the neighborhood where he resides; and, where it appears that a witness resides in the same neighborhood, it is error injurious to the accused to exclude the testimony of such witness as to whether he knew such reputation and what it was. [Ed. Note.-For other cases, see Rape, Cent. Dig. § 61; Dec. Dig. 42.] 2. RAPE 43(2)—PROSECUTION-ADMISSIBILITY OF EVIDENCE. reputation for morality, and that the defendant was injured thereby. We are of the opinion that the complaint is well founded. [1] The defendant called Maurice Spapiro as a witness, and proved by him that both he and the defendant lived in the same neighborhood. The defendant's counsel then put this question to the witness: "Do you know what his [defendant's] reputation is in the neighborhood for morality?" The question was objected to by the prose Upon trial for carnal abuse of a female cutor of the pleas, and overruled by the child, where the testimony of the prosecutrix judge, upon the theory that "no foundation tended to show sexual intercourse, it is errone- had been laid for it." But that was a misous to exclude the testimony of the police taken notion. The witness, having testified surgeon, tendered by the accused, as to what he that both he and the defendant resided in found to be the physical condition of the prosecutrix after the alleged abuse; for, while sexual the same neighborhood, it was the right of Since there must be a new trial, we re mark that we find no other errors. the defendant to show by him that he knew proof of his guilt. State v. Raymond, 53 N. defendant's reputation in the neighborhood J. Law, 260, 21 Atl. 328. for morality, and what it was. State v. Snover, 63 N. J. Law, 382, 43 Atl. 1059; State v. Polhemus, 65 N. J. Law, 387, 47 Atl. 470. The judgment below will be reversed, and The denial of this right was injurious be-a venire de novo awarded. cause the defendant was entitled to have all the relevant testimony, including that relating to his good repute, considered by the jury, and if, on such consideration, there existed reasonable doubt of his guilt, even though that doubt be engendered merely by his good reputation, he would have been entitled to an acquittal. Baker v. State, 53 N. J. Law, 45, 20 Atl. 858. (89 N. J. Law, 669) DERONET v. F. W. WOOLWORTH CO. (Court of Errors and Appeals of New Jersey. Nov. 20, 1916.) NEGLIGENCE 136(22, 26) — ACTIONS - EVI DENCE-SUFFICIENCY. In an action by a customer at defendant's store who fell down a stairway while following a saleswoman to pick out a sugar box, the questions whether defendant was negligent in failing to keep its store in a reasonably safe condition, as well as whether plaintiff exercised reasonable care for her own safety, held under the evidence for the jury. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 286, 324, 333-335, 338, 339, 342345, 353; Dec. Dig. 136(22, 26).] Appeal from Supreme Court. [2] We think, also, that the defendant should have been permitted to show by Dr. Connelly, the police surgeon, what he found to be the physical condition of the prosecutrix after the alleged abuse. Of course carnal abuse does not connote penetration, and hence is not identical with criminal knowledge, that is, sexual intercourse, or with rape. State v. Hummer, 73 N. J. Law, 714, 65 Atl. 249. But the prosecutrix's testimony tended to show sexual intercourse, and while this was not essential to conviction, yet if the testimony of the physician had been admitted, and had tended to contradict the prosecutrix, it would have had a legitimate pellee. bearing upon the credibility of the prosecutrix as a witness. Action by Cyrine Deronet against the F. W. Woolworth Company. From a judgment for plaintiff, defendant appeals. Affirmed. M. Casewell Heine, of Newark, for appellant. Albert Leuly, of West Hoboken, for ap KALISCH, J. The appeal in this case pre [3] We think also that the trial judge er-sents the single question whether there was red in overruling this question put on crossexamination of the prosecutrix: "Did you not say to the man in Bayonne that the man that did bad things, that had intercourse with you, was a man with red hair and red cheeks, and sores on his face?" This question described a man other than the defendant, and was put and was competent as affecting the credibility of the witness. State v. Brady, 71 N. J. Law, 360, 59 Atl. 6. any evidence warranting the submission of the case to the jury. The gravamen of the action was negligence of the defendant. The plaintiff recovered a verdict against the defendant in the court below, and it is the judgment entered upon that verdict which is before us for review. The plaintiff, a middle aged woman, entered the defendant's store to make some purchases. She had bought a few articles and was seeking to buy a five-pound sugar box. She was asked by the saleswoman who wait[4] We think, also, that it was erroneous ed upon her to point out the box, and the to permit the state to prove other criminal saleswoman, walking slightly in advance of acts of the accused with others than the the plaintiff and followed by the latter, walkprosecutrix. ed through an open space between two railThe general rule on this subject is that up-ings, the plaintiff still following and at the on the trial of a person for one crime, evi- same time pointing to a sugar box on a shelf dence that he has been guilty of other crimes against the wall of the store, and while the is irrelevant. There are, of course, certain plaintiff was doing this she fell down a well-known exceptions to this general rule. flight of stairs which she did not see and They have been stated in State v. Raymond, of the existence of which she had no warn53 N. J. Law, 260, 21 Atl. 328, and one of ing. The evidence shows that the opening of them has been illustrated in State v. Jankow- the stairway was flush with the floor, and ski, 82 N. J. Law, 229, 82 Atl. 309. But the that the opening between the rails through testimony as to other crimes in the present which the saleswoman and the plaintiff passcase does not fall within any of these recog- ed on their way to the sugar box was pronized exceptions. They were not a part of tected by a gate, which opened and shut by the res gesta. There was no logical relation a spring lock, to prevent persons, not conbetween them and the crime charged, except nected with the store, from going onto the that they may have all resulted from the floor space beyond it. criminal disposition of the accused, and this cannot, under our legal theory, figure as The plaintiff testified that when she was brought upstairs after her fall she saw a gate across the opening through which she and the saleswoman had passed, and that the gate was then shut. The saleswoman was not called as a witness. As the evidence then stood, it was permissible for the jury to draw either of two inferences: That the saleswoman in passing opened the gate to let the plaintiff follow her in order to point out the sugar box, or that the gate was found open and left so by the saleswoman in order that the plaintiff could follow her for the purpose stated. We think there was evidence, though meager, yet sufficient, from which a jury might properly have found that the saleswoman, by her conduct, invited the plaintiff to the spot where the latter met with her mishap. charged veteran of the Spanish-American War, and as such is entitled, under the Veteran Act (chapter 14, Laws 1907) to serve in the position from which he was removed until in the language of the act, he shall be removed "for good cause shown after a fair and impartial hearing." That act, however, contains a qualifying feature which presents the real inquiry upon this writ; i. e., the veteran who may claim the benefit of its provisions must be the occupant of an office or position "whose term of office is not now fixed by law." It is important to inquire, therefore, whether at the time of the enactment of the legislation invoked, the term of office of the city clerk was fixed by law, for obviously if The question whether the defendant exer- it was, the prosecutor does not bring himself cised reasonable care to keep and maintain within the terms of the act. The city is its store in a reasonably safe condition, and governed by the provisions of “An act rethe question whether the plaintiff used rea-lating to, regulating and providing for the sonable care for her own safety, were, under government of cities," approved April 3, 1902 the evidence, jury questions and were proper- (P. L. 1902, p. 284). The second section of ly submitted to them. the act provides for the appointment of a The judgment will be affirmed, with costs. city clerk, and fixes his term of office at (89 N. J. Law, 443) BELL v. ATLANTIC CITY et al. (Supreme Court of New Jersey. Nov. 10, 1916.) (Syllabus by the Court.) MUNICIPAL CORPORATIONS 157(1)-OFFICERS-APPOINTMENT-CIVIL SERVICE. The prosecutor was appointed to the office of city clerk of Atlantic City, for one year at a stated salary, and held the office without reappointment for three years, when he was superseded by another. He contests the legality of the appointment of his successor upon the ground that, being a veteran of the SpanishAmerican War, he cannot be removed under the provisions of the act of 1907 (chapter 14), without good cause, and after a fair and impartial hearing. Held, that the act of 1907 applies only to officials holding an office, whose term was not fixed by law at the time of the passage and approval of the act. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 347; Dec. Dig. 157(1).) three years. Subsequent legislation applicable to the city enabled the commissioners to appoint a city clerk "for such term as they may fix." P. L. 1911, c. 221 (p. 462), P. L. 1912, p. 643. The commissioners on July 16, 1912, adopted a resolution, providing for the appointment of a city clerk for the term of one year and fixing his salary. At a meeting held on July 30, 1912, the prosecutor was appointed to the office, and the salary by another resolution was increased. No change was made in the office until May 16, 1916, when another resolution was passed, providing for the election of a city clerk and fixing his salary. At that meeting a successor to the prosecutor was appointed. We think that this legislation and the municipal action taken thereunder created an office with a fixed term, and that the prosecutor cannot invoke the Veteran Act to maintain his tenure. Gilhooly v. Freeholders, 43 Atl. 569. The legislation referred to manifestly was intended to enable the commissioners to fix the term of office, and the resolutions adopted by the Certiorari proceedings prosecuted by Daniel H. V. Bell, to review a resolution of the commissioners in pursuance thereof leave no commissioners of Atlantic City. Resolution affirmed. Argued June term, 1916, before SWAYZE, MINTURN, and KALISCH, JJ. Theodore W. Schimpf, of Atlantic City, for prosecutor. Harry Wootton, of Atlantic City, for defendants. doubt that they availed themselves of the power so conferred. The act of 1902 fixed the term at three years, and the only change worked by the subsequent legislation was to leave the duration of the term optional with the commissioners, and in either event the term of office was fixed. If it be contended that the MINTURN, J. The writ of certiorari in latter legislation was subject to the provithis case brings up for review a resolution sions of the Veteran Act, upon the theory passed by the commissioners of Atlantic City, that such was the legislative intent, the anremoving the prosecutor from the office of swer is that the Veteran Act expresses its city clerk, and appointing another in his own limitation, and applies only to offices place. The contention of the prosecutor whose terms were not fixed by law at the against the validity of this action is based time of the passage and approval of the act. upon the fact that he is an honorably dis- The passage of the resolution, creating the |