lieved the testimony of the two conductors, | to pay death benefits, and to agree to pay the they could, in determining whether the use of this ticket by the two strangers was a misuse justifying a forfeiture, consider the plaintiff's habit and custom with similar tickets. For the reasons stated, the judgment is reversed. same to husband, wife, father, mother, son, daughter, sister, or legal representatives of any such member after his death. This power to contract was held by Judge Depue, in Stewart v. Odd Fellows, etc., Ins. Ass'n, 12 N. J. Law J. 110, to be limited to the persons enumerated, and that the power of a beneficiary to appoint was likewise limited. The (77 N. J. L. 399) reasoning of Judge Depue is convincing and RYAN V. FIREMEN'S MUT. BENEV. ASS'N sound, and disposes of this case, for here the NO. 1, JERSEY CITY. beneficiary undertook to assign his rights to (Supreme Court of New Jersey. Feb. 23, 1909.) a person not in the class permitted by the INSURANCE (§§ 728, 769*)—MUTUAL BENEFIT-law. It is claimed, however, that Act March 24, 1898 (P. L. p. 165), empowers such asso DESIGNATION OF BENEFICIARY. The right of a member of a beneficial or- ciation to alter their by-laws and constitution ganization to designate a beneficiary is limited so as to permit contracts with third persons. to the class with whom the association may law-But the act does not do this in terms, and fully contract to pay benefits, and therefore the assignment, by a member, of a benefit payable on his death to a person not within the class enumerated in the law under which the association was incorporated is void, and cannot be enforced by the assignee. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1875, 1932; Dec. Dig. 88 728, 769.*] (Syllabus by the Court.) must be construed to limit the right to make such contract with those only who are named in the law under which this organization was incorporated. If it does not, then the association is no longer a charitable institution, and could assume the functions of a life insurance company, which the law does not permit. In 1898 (P. L. p. 422) a general act for the incorporation of all associations, not Appeal from District Court of Jersey City for pecuniary purposes, was passed under Action by John J. Ryan against the Fire- which societies like the defendant may be ormen's Mutual Benevolent Association No. 1,ganized, and in 1899 (P. L. p. 189) a number Jersey City. Judgment for defendant, and plaintiff appeals. Affirmed. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. Tumulty & Cutley, for appellant. & Smith, for appellee. of laws under which beneficial societies had organized were repealed, and among them was the law of 1875 and its supplements, but it was expressly provided that the rights Edwards and privileges theretofore obtained under any of said acts should not be annulled. The effect of this legislation was to require all new corporations of this class to avail themselves of the act of 1898, but permitted those in existence to exercise and enjoy the privileges granted by the repealed acts. There is nothing, therefore, in this new legislation which changes the powers of the defendant association. The act of March 28, 1904 (P. L. p. 191), only extends to such existing corporations the right to dissolve. BERGEN, J. John Cassidy in 1897, while a member of the Jersey City Fire Department, became a member of the defendant association, and by its constitution and by-laws the defendant agreed to pay, on his death, to his heirs, executors, administrators, or assigns, or to whomsoever he might in his lifetime designate as his beneficiary, the sum of $300. Cassidy, on April 15, 1904, assigned and transferred "a certain benefit of three hundred ($300.00) dollars, which I hold as a member of the Firemen's Mutual Benefit Association, Branch No. 1 of the city of Jersey City," to the plaintiff, who is not related by blood or otherwise to Cassidy. This suit was brought to enforce the payment of the benefit so assigned, which defendant refuses to pay because the plaintiff is not within the class of beneficiaries intended, either by the constitution and by-laws of the association, or the law under which it is organized. There was a judgment for defendant, from which plaintiff appeals. The defendant association was organized December 26, 1895, under the act of 1875 (Rev. St. 1874, p. 79). At that time, by an amendment to the original act, made in 1886, 1 Gen. St. p. 153, § 24, it was lawful for such associations to contract with their members The judgment below will be affirmed. A district court has not jurisdiction to try an action to recover a debt over $500, although the plaintiff waives the excess over $500. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 428; Dec. Dig. § 169.*] 2. COURTS (§ 169*)-DISTRICT COURTS-JurisDICTION-WAIVER OF EXCESS. The right to waive a part of a debt rests upon section 33 of the act of June 14, 1898 (P. L. p. 564), and the waiver must be for the excess over $300. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 428; Dec. Dig. § 169.*] (Syllabus by the Court.) Appeal from District Court of Newark. Action by James T. Mooney against Elizabeth S. Woolhouse. Judgment for plaintiff. Defendant appeals. Reversed. The action was brought for an amount al leged to be due to a materialman under a stop notice served under the provisions of the mechanic's lien act. The demand sets up: That Mrs. Woolhouse, the defendant, enter ed into a written contract with Hayne & Kearney, builders, to erect a building in the town of Belleville; that said contract, or duplicate thereof, together with specifications or copy thereof, was filed in the office of the clerk of Essex county; that Hayne & Kearney afterward became indebted to Mooney, the plaintiff, in the sum of $500 for materials furnished to the said Hayne & Kearney, and they refused to pay, on which demand and refusal to pay the plaintiff gave notice to Mrs. Woolhouse. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. Woerner & Woerner, for appellant. Fred. M. Payne, for appellee. REED, J. The first specification of the grounds for appeal is that the court had no jurisdiction over the subject-matter involved in the above-stated cause. The sum sued for, as already remarked, was $500. It appears that the contract between Mooney, on the one part, and Hayne & Kearney, on the other, fixed the price for which Mooney was to furnish labor and material to Hayne & Kearney at the sum of $817. Of this sum $300 had been paid, so the amount due, according to the plaintiff, is the single sum of $517. This is the sum demanded by him of Hayne & Kearney, of which demand notice was given to Mrs. Woolhouse. The insistence of the appellant is that the district court has no jurisdiction to entertain a claim to recover in contract a sum in excess of $500. The jurisdiction of the district court is defined by the revised act of June 14, 1898 (P. L. p. 556) and the amendment to the act of April 13, 1908 (P. L. p. 384). Section 30 of the act of June 14, 1898 (P. L. p. 564), as amended by the act of April 13, 1908 (P. L. p. 384), reads as follows: "Every suit of a civil nature at law, or to recover any penalty imposed or authorized by any law of this state, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of five hundred dollars, shall be cognizable in district courts of this state," etc. Under this section the jurisdiction of the district court to try this claim of $517 would be clearly absent. Howell & White v. Burnett, 20 N. J. Law, 265. The plaintiff, however, in this case, filed a notice attached to his state of demand that he waived the claim of $17 in excess over and above the $500 and seeks costs. That no right to waive a part of a single sum alleged to be due exists by force of the thirtieth section already set out is decided by the case of Howell & White v. Burnett, supra. The defendant, however, 1898 (P. L. p. 564), which reads thus: relies upon section 33 of the act of June 14, "Where the debt, balance or other matter in dispute, or amount really due or recovcosts, the sum or value of three hundred erable as aforesaid, exceeds, exclusive of dollars, the plaintiff or defendant may recover in such court, a sum not exceeding three hundred dollars and costs, but such reCovery shall be a bar to the recovery of the residue of such debt, balance or other matter shall be lawful for the plaintiff or for the dein dispute in any court whatsoever; and it fendant in a set-off to waive the excess over three hundred dollars." In section 30 of the act of 1898 the jurisdiction conferred was to take cognizance of suits for sums of the value of $300, and the insistence of the appellee is that, inasmuch as the act of 1908 increased the jurisdiction over sums cognizable by the district court from $300 to $500, therefore it follows that the right of waiver under section 33 of 1898 exists where the debt or matter in dispute exceeds $500. It is not perceived, however, how upon any ground of statutory construction the amendment of 1908, dealing entirely with section 30 of 1898, affected in any degree section 33 of that act. The act as it now stands provides that every suit of a civil nature at law, where the debt or damage does not exceed $500, shall be cognizable in district courts; and section 33 that where the debt, balance, or other matter in dispute recoverable as aforesaid exceeds the sum of $300, then, etc., it shall be lawful for the plaintiff to waive the excess over $300. If the thirty-third section had read, "Where the debt, balance or other matter in dispute exceeds the sum recoverable under section 30, then the plaintiff could waive the excess," there would be force in the contention; but this is not the reading of section 33, but it expressly says that it is only where the debt, balance, or other matter in dispute exceeds $300 that it shall be lawful for the plaintiff to waive the excess over $300. The intention of the Legislature, as expressed in the act as amended, is that, while there is jurisdiction conferred to entertain debts and claims for sums up to $500, yet it is only where the claim is for the recovery of $300 that the excess over $300 can be waived. So the remedy for a party who wishes to recover for a claim of a single amount over $500 is to sue in a court other than the district court, or else to sue for $300, waiving the excess of his debt or demand over and above that amount. For this reason we think the judgment should be reversed. It may be remarked, also, that, even if the court had been equipped with authority to try the case, the judg the sum of $67,000. That in consideration of the premises, said plaintiffs performed certain services, paid certain expenses about the negotiation and consummation of such sale, and did make such sale for said sum. foundation of plaintiff's claim was that he the said property to a certain purchaser for had no right to a lien upon the building of Mrs. Woolhouse, because the contract, or copy thereof, between Mrs. Woolhouse and the contractor, had been filed in the office of the county clerk of Essex county. There was no legal proof of such filing. The judgment below must be reversed. (77 N. J. L. 301) ADAMS et al. v. GRADY. (Supreme Court of New Jersey. March 19, 1909.) 1. BROKERS (§ 82*)—ACTION FOR COMMISSIONS -DECLARATION. A declaration, which sets out that the defendant employed the plaintiff to sell real estate and a promise by the defendant to pay for such services, need not set out that the authority for selling and a statement of the rate of commission for the selling were in writing. The statutory requirement of such writing is a matter of evidence only. [Ed. Note. For other cases, see Brokers, Dec. Dig. 82.*] The single ground of the demurrer discussed in the brief of counsel for the defendant, the demurrant, is that the counts allege a contract to pay commissions for the negotiation and sale of real estate, but do not allege that there was any written authority to make such sale, or any statement of rate of commission for such services. This insistence is based upon the act, which declares that no broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing, signed by the owner or his authorized agent, and the rate of commission on the dollar shall have been stated in such author 2. PLEADING (§ 362*) — DeclaraTION-STRIK-ity. 2 Gen. St. 1895, p. 1604, § 10. Assum ING OUT COUNTS. Counts will only be struck out upon the ground that they cover the same matter as other counts, when it is apparent that the counts are without substantial difference, or so long and numerous as to be vexatious. [Ed. Note.-For other cases, see Pleading, Dec. Dig. 362.*] (Syllabus by the Court.) Action by Hugh W. Adams and Benjamin H. Adams against Elizabeth C. Grady. Demurrer to declaration and motion to strike out the second count thereof denied. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. Hugh B. Reed, for plaintiffs. Hartshorne, Insley & Leake, for defendant. ing that, on the trial of the case, the contracts set out in the declaration would be unprovable without the written authority and statement mentioned in the statute, nevertheless the plaintiffs were not obliged to declare that the authority and statement was in writing. The right to bring an action for services in negotiating the sale of property at the request of the owner was not created by this statute. It existed at common law. The statue only requires that evidence of the request and authorization must be in writing, and that the rate of compensation shall also be fixed by the writing. So far as affects the declaration setting up such a contract, the law presumes that the contract declared on, if required to be in writREED, J. The first count to which a de- ing by the statute, was in writing. The murrer is interposed declares that the de- statute of frauds merely introduces a new fendant in New York, to wit, at Jersey City, rule of evidence and does not alter or afwas indebted to the plaintiffs for work and fect the rule of pleading. 1 Chitty on Pleadlabor performed by the plaintiffs at the re- ing, marg. p. 222; Wilkinson-Gaddis & Co. quest of the defendant by a negotiation ar- v. Van Riper, 63 N. J. Law, 394, 43 Atl. 675; rangement and completion of a sale of cer- Whitehead v. Burgess, 61 N. J. Law, 75, 38 tain real property of the value of $67,000, Atl. 802. Nor is it perceived how the reand for commissions due to the plaintiffs quirement of authority to act for the dein respect thereof, and for other work and fendant as agent or broker shall be in writlabor performed in and about the said prop-ing differs from the requirement that any erty and other business of said defendant other contract shall be evidenced by writing. at her special insistence and request, and for divers journeys and other attendance by said plaintiffs performed about the same business and other business by said defendant; and, being so indebted, she promised to pay $4,000 when requested. The third count set out a consideration that the defendant should pay the plaintiffs a commission of 22 per centum upon the selling price of a certain piece of property of the said defendant; the plaintiffs agreeing to negotiate, arrange, and procure the sale of The motion to strike out the second count The suggested distinction that the statute requires a written authority as a condition precedent to the contract is not substantial. The writing is evidence of the contract itself, which consists of the employment of an agent to do certain work for his employer, and the amount he is to be paid for that work when executed. We think there must be judgment for the plaintiffs on the demurrer to the first and third counts. we think must be denied. The count itself is not frivolous or irregular. The only point urged that seems available on this motion is that the count is useless, because it covers the same ground as the fourth count and the common counts. The prac tice of setting out the same causes of action in several counts is usual, and only when the number of counts are great, and of considerable length, and the distinction between them unsubstantial, and it is apparent that they are vexatiously inserted, the court exercises its discretion in striking them out. 1 Chitty on Pleading, 409. We think there is nothing in the frame of the several counts in this declaration which justifies the striking out of the second count as redundant. (77 N. J. L. 323) LAUTER CO. v. ISENREATH et al. (Supreme Court of New Jersey. March 19, 1909.) 1. Sales (§ 456*)—CONDITIONAL Sale-WHAT CONSTITUTES. A., to whom a piano was delivered by B., gave a certificate that he (A.) had hired from B. a piano of the value of $290, for which A. agreed to pay $50 down and to pay the balance in installments of $7 per month, and that the agreement was to be a hiring contract only until A. pay for the instrument in full, and B. gave him a receipted bill therefor, that the instrument was to remain the property of B., and that upon due payment in full as aforesaid within 34 months from date of agreement B. would sell the instrument to A. for the said price and give a receipted bill therefor. Held, that this paper amounted to a conditional sale of the instrument. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1327-1331; Dec. Dig. & 456.*] 2. SALES (§ 473*)-CONDITIONAL SALE-FAILURE TO RECALL RIGHTS OF BONA FIDE PUR CHASER. Before this agreement was recorded, the vendee, although in default in his payment to the vendor, sold the instrument to a purchaser in good faith. Held, that by such sale title passed to the purchaser, and the condition that the ownership should remain in the vendor until the instrument was paid for was void under the statute. Act May 9, 1889 (P. L. p. 421). [Ed. Note.-For other cases. see Sales, Cent. Dig. 1384; Dec. Dig. § 473.*] (Syllabus by the Court.) Appeal from District Court, Paterson County. Action by the Lauter Company against Herbert Isenreath and Adolph Cohen. Judgment for defendants, and plaintiff appeals. Affirm ed as to Cohen. Argued November term, 1908, before REED, a certificate: That he had hired it from the Lauter Company, it being of the value of $290, for which he agreed to pay $50 on signing this agreement and to pay the balance in installments of $7 per month, monthly in advance, or sooner, at his option; that the agreement was to be a hiring contract only, until he (Isenreath) should pay for the instrument in full, and get a receipted bill therefor; the instrument to remain meanwhile the property of the Lauter Company absolutely. It was agreed that in case of any default in payments by Isenreath at any time the Lauter Company were at liberty to enter any premises where said instrument might be and take it away as their own property. This certificate was not filed in the office of the register of deeds for Passaic county until May 28, 1908, although the paper was executed September 15, 1906. The piano, before the filing of the agreement aforesaid, had been sold by Isenreath to one Cohen, but no bill of sale was made to Cohen, and of course none filed for record. The court found that Cohen was a bona fide purchaser from Isenreath and gave judgment for Cohen. It is insisted that the contract between the Lauter Company and Isenreath was not one for the conditional sale of the piano. In support of this insistence, the case of Singer Mfg. Co. v. Wolff Company, 70 N. J. Law, 127, 56 Atl. 147, is cited; but in this case there was a hiring of a sewing machine at a fixed rent, with no clause that, upon payment of the value of the machine, title should pass to the bailee, nor that a bill of sale should be made to him. In the present case, as has been stated, there is a provision that, upon the payment of monthly rentals for a period named, the Lauter Company will sell the piano to Isenreath and give a receipted bill for same. There is nothing in the point that the certificate was merely an agreement to sell in the future, if a certain condition is performed by the vendee, and that it is not an agreement for a present sale, title not to pass until the price is paid. The agreement is that a receipted bill shall be given upon full payment by the vendee, meaning that title shall pass upon the performance of that condition, and this constituted a conditional sale. Hine v. Roberts, 48 Conn. 267, 40 Am. Rep. 170; Singer Mfg. Co. v. Cole, 4 Lea (Tenn.) 459, 40 Am. Rep. 20; Lucas v. Campbell, 88 Ill. 447; Baldwin v. Van Wagner, 33 W. Va. 293, 10 S. E. 716. The transaction being a conditional sale, accompanied by an actual delivery to Isenreath, the condition that the piano should remain John F. Kerr, for appellant. Moore & Da- the property of the Lauter Company until vison, for appellees. BERGEN, and MINTURN, JJ. REED, J. This action is to replevy a piano. Isenreath received the possession of the piano from the Lauter Company and gave paid for was void as against a subsequent purchaser in good faith until recorded. 1 Gen. St. 1895, p. 891, § 191; Act May 9, 1889 (P. L. n. 421). This certificate, as has been already ob one that he owed to his servants or one that they owed to him. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. & 486; Dec. Dig. § 196.* For other definitions, see Words and Phrases, vol. 2, p. 1322.] 4. MASTER AND SERVANT (§ 185*)-INJURIES TO SERVANT DELEGATION OF MASTER'S DUTY. If a master owe to his servants a duty served, was not recorded until after Isenreath had sold the piano to Cohen; but it is again insisted that under the terms of section 71 of the act of June 14, 1898 (P. L. p. 699), the unrecorded conditional sale was void only as to a purchaser whose deed shall have been recorded. This clause in the act of 1898 is dealt with and explained by Mr. Justice Garrison, in his opinion in the case of Lauter Company v. O'Toole, 71 Atl. 288, in which case this court decided that the provisions of the conditional sale act of May 9, 1889 (P. L. p. 421), touching the right of purchasers in good faith, is not affected by section 71 of the act concerning conveyances (Act June 14, 1898 [P. L. p. 699]), and furthermore that the former act was not repealed by the act to repeal sundry acts respect-5. MASTER AND SERVANT (§ 101*)-INJURIES ing conveyances (P. L. 1898, p. 711). The judgment in favor of Cohen should be affirmed. (77 N. J. L. 516) LARAGAY v. EAST JERSEY PIPE CO. (Court of Errors and Appeals of New Jersey. March 1, 1909.) 1. MASTER AND SERVANT (§ 288*)-INJURIES TO SERVANT QUESTIONS FOR JURY-ASSUMPTION OF RISK. The A derrick that leaned away from a nearby building at an angle of 10 degrees was held in that position by its own weight and by a guy rope that ran to such building. At the apex of the derrick, a pulley was suspended, through which ran a rope, one end of which was fastened to an iron plunger, weighing 500 pounds, that stood between the two feet of the derrick. other end of the rope was held by the plaintiff and other workmen standing between the derrick and the building. When traction was made on this rope, in order to draw up the plunger, the frame toppled over towards the building, and fell on the plaintiff. Held, that whether or not this result was so obvious that it ought to have been foreseen by the plaintiff was a question of fact to be left to the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1070; Dec. Dig. § 288.*1 2. MASTER AND SERVANT (§ 288*)-INJURIES TO SERVANT-QUESTIONS FOR JURY-AS SUMPTION OF RISK. In determining whether or not a risk is obvious in a legal sense, the question as to the impression that would be made on the mind of a reasonably prudent man by a congeries of concurrent circumstances is normally one for the jury, and always so when from such circumstances opposite inferences might in reason be drawn by different minds. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1068; Dec. Dig. § 288.*] 3. MASTER AND SERVANT ($ 196*)-FELLOW SERVANTS-WHO ARE - "COMMON EMPLOY MENT." An employment is common to the servants of the same master within the meaning of the "fellow-servant rule" when it is performed as part of the duty owed by them to the common master by virtue of their employment as servants; hence the "fellow-servant rule" has no application where the duty is one that is owing by the master to his servants. The test is not what agents the master employed to perform a certain duty, but whether the duty itself was that involves the exercise by him of reasonable care, he cannot escape liability for its negligent fulfillment by delegating its performance to one or more of the class to whom such duty is owing. In such case, if the servants employed to perform the master's duty failed to exercise reasonable care in its performance, the master is legally chargeable with the fault. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 385; Dec. Dig. § 185.*] TO SERVANT-SAFE PLACE IN WHICH TO Where the duty of the master is to exercise reasonable care that the place provided by him shall be a reasonably safe one for his servant to work, judicial decisions made in cases where accidents have occurred in the course of construction or in the so-called "scaffolding cases" have no application. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 393; Dec. Dig. § 101.*] 6. MASTER AND SERVANT (§ 90*)-INJURIES TO SERVANT-VOLUNTEER. A workman, who, in obedience to the orders of his superior, engages in some other than his regular employment, is not on that account to be deemed a mere volunteer, to whom the duty of exercising reasonable care is not owing. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 139; Dec. Dig. § 90.*] Swayze and Dill, JJ., dissent. (Syllabus by the Court.) Error to Supreme Court. Action by Samuel Laragay against the From a judgEast Jersey Pipe Company. ment of the Supreme Court (68 Atl. 1073), reversing a judgment in the circuit court for plaintiff, plaintiff brings error. Judgment of the Supreme Court reversed and of the circuit court affirmed. Ward & McGinnis, for plaintiff in error. Lindabury, Depue & Faulks, for defendant in error. GARRISON, J. The plaintiff brought his action in the circuit court to recover damages for personal injuries received by the fall of a derrick. Plaintiff was the servant of the defendant, and the gravamen of his action is that the master did not exercise reasonable care to render the appliance and the place at which he set the plaintiff to work reasonably safe. At the trial, there being a sharp conflict in the testimony as to the manner in which the fall of the derrick came about, the trial court denied the defendant's motions for a nonsuit and a direction of a verdict, and submitted to the jury the conflicting testimony in a charge that was legally unexceptionable. Under the charge, the verdict of the jury, both as to the negligence |