necessary to here suggest that they will not she had about reached the east-bound track, be bound by any decree which may be enter- when she saw a train coming and endeavored. These circumstances would seem to de- ed to clear the track without being hit, but mand that a possible error in procedure was not successful, the crossbeam of the which has not been raised by the pleadings locomotive striking her and causing the inor specifically interposed at any time should juries for which she recovered a verdict for not be operative to deny to this court the $1,000. The defendant holds a rule to show right to determine by its decree to be enter-cause why the verdict should not be set aside ed herein that its former decree was procur- and a new trial granted and urges two reaed through fraud and is void so far as it sons: First, that the finding of the jury that affects the property rights of the parties de- the statutory signals were not given was fendant to this suit, and to deny to these against the weight of the evidence; and, secdefendants the right to assert the fraud-ond, that the verdict should have been directulent decree as the foundation of rights which may be claimed by them. I will advise a decree to that effect.

Defendant railroad had safety gates to protect its double-track crossing, which gates were being operated, and no notice was posted that they were out of order. Plaintiff approached the crossing while the gates were down and a train was passing on a near track, and after the train had passed the gates were raised, and plaintiff proceeded across the near and onto far track without listening or looking for other trains. She was struck and injured by a train on the far track. Held, that plaintiff was not negligent in failing to look and listen, under provision of Act April 14, 1909 (P. L. p. 137), abrogating the defense based on such contributory negligence in injuries at protected highway crossing.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1043, 1045; Dec. Dig. 327(1).] Action by Susan W. Hatch against the Erie Railroad Company. On rule to show cause why a verdict for plaintiff should not be set aside and new trial granted. Rule discharged.

Argued November term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ.

Charles B. Dunn, of Paterson, for plaintiff. Collins & Corbin, of Jersey City, for defendant.

ed in favor of the defendant upon the ground that the plaintiff was chargeable with contributory negligence as a matter of law.

This case involves the application of an act entitled, "An act with reference to the degree of care necessary to be used by travelers over railroad crossings protected by flagmen or safety appliances or both." P. L. 1909, p. 137. The act provides, in substance, that, when a railroad company has established safety gates where its right of way crosses a public street, any person approaching such crossing shall, during such hours as a posted notice shall specify, be entitled to assume that such safety gate is in good order and will be properly operated unless a written notice be posted inscribed, "Out of order," in a conspicuous place at the crossing, and that, in any action brought for injuries caused at any such crossing, "no plaintiff shall be barred of the action because of his (the) failure of the person injured to stop, look and listen before passing over said crossing."

It was held by the Court of Errors and Appeals, in Fernetti v. West Jersey & S. R. Co., 87 N. J. Law, 268, 93 Atl. 576, where, as in this case, the notice as required by the statute was not posted, that condition absolved the plaintiff from stopping, looking, and listening. In the case now under consideration, the evidence upon the question whether statutory signals were given was disputed, there being testimony that persons so situated as to hear them if given did not, and thus it became a question for the jury, and their conclusion we are not disposed to set aside under the circumstances in this BERGEN, J. The plaintiff, walking along case. Whether a subsequent statute, which Ellison street in the city of Paterson, ap- absolves a plaintiff under given circumstancproached the tracks of the defendant which es from listening, modifies the statute which crossed the street at grade. The defendant excuses a railroad company from the charge maintained safety gates at this crossing on of negligence when the statutory signals are each side of its right of way over which given, and deprives it of the excuse when it there were two lines of railroad tracks, one negligently raises the gates and thus invites used for east-bound and the other for west-persons to cross their tracks, without listenbound trains. When she reached the cross-ing for approaching trains, is not necessary ing, a train was passing over the west-bound in this case to be determined, although the track, being the one nearest to her, the safety gate was down, and after the west-bound train passed the crossing the gate next to which the plaintiff was standing, was raised, and she proceeded across the tracks, until

argument that a person about to cross the track may rely upon an invitation to be implied from the raising of the gates and is not under any duty to listen for signals, or any other noise which an approaching train

might make, for the signal cannot well be noticed unless one listens to hear it, is not without force.

In the present case, however, assuming the statutory signals not to have been given, we think it is controlled by the statute referred to. The defendant had established gates at a railroad crossing, they were being operated, and no notice was posted that they were out of order, and so the plaintiff had a right to assume under this statute that the cross

Error to Court of Quarter Sessions, Union County.

William Brunet and others were convicted of manslaughter, and to review the judgment they bring error. Judgment reversed.

Argued November term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ.

William R. Wilson, of Elizabeth, for plaintiffs in error. Alfred A. Stein, Prosecutor

ing was guarded by gates properly operated, of the Pleas, of Elizabeth, for the State. and that a traveler crossing the same would be warned by the gate if there was any danger in doing so. The very object of this statute is to inform persons intending to cross the track whether they may safely do so, and the raising of the gate under such circumstances is an affirmative act of the defendant from which any person, intending to cross, had a right to infer that he could do so safely without stopping, looking, or listening before doing so, and if, under this statute, the testimony in the case raised a question of contributory negligence to be submitted to the jury, it was done, and the jury found that the plaintiff was not guilty of contributory negligence. The evidence supports this finding.

Under the views above expressed, the present rule to show cause will be discharged.

(88 N. J. Law, 414)

STATE v. BRUNET et al. (Supreme Court of New Jersey. March 2, 1916.)

1. CRIMINAL LAW 417(14) - DISCREDITING WITNESS BY PROOF OF PRIOR INCONSISTENT STATEMENTS-USE OF STATEMENT.

In a prosecution for homicide, the written statement, which a witness made and signed in the prosecutor's office, contrary to what she testified to on trial, was not competent to prove the truth of what happened on the occasion of the homicide, but only admissible to discredit or neutralize her testimony.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 956; Dec. Dig. ~417(14).] 2. CRIMINAL LAW 1172(2)—APPEAL-PREJ UDICIAL ERROR-ADMISSION OF EVIDence. In a prosecution for homicide, error of the court in charging that the jury might consider, as substantial evidence of what happened, a written statement, signed by a witness in the prosecutor's office, inconsistent with her testimony on trial, was prejudicial.

BY PROOF OF INCONSISTENT STATEMENT
USE OF STATEMENT.

GUMMERE, C. J. The defendants were indicted for the felonious killing of one Laurence Bagasse, and were convicted of the crime of manslaughter. One of the witnesses called by the state was Catherine Gorddard. Her testimony having been unsatisfactory to the prosecutor, he then called Mr. O'Connor, the assistant prosecutor of the county, and proved by him that Mrs. Gorddard had, on a previous occasion made a statement of the facts connected with the homicide differing very materially from her testimony on the witness stand; that the statement was taken down in writing and then read over to and signed by her, the statement having been voluntarily made and sworn to by her. This statement was offered in evidence, and received by the court over the objection of the counsel for the defendants. The purpose of its offer, as stated by the prosecutor of the pleas at the time of its admission, was the proving

"of the truth of what happened on that occasion, and because the state was surprised by what the witness said on her earlier examination."

[1, 2] In the charge to the jury the court, in dealing with Mrs. Gorddard's testimony, said:

it originally on her direct examination, and com"You will take her testimony as she told you pare it with the statement which she signed in the prosecutor's office, and decide whether she was telling the truth then, or telling the truth afterwards when she was under cross-examination by Mr. Wilson.'

Exception was taken to this instruction. The written statement was not competent "for the purpose of proving the truth of what happened" on the occasion of the homicide. Prior statements, made by a witness, contradictory of her testimony on the stand, are only admissible for the purpose of discrediting or neutralizing the effect of the

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3155; Dec. Dig. 1172(2).] testimony given; they are not admissible 3. CRIMINAL LAW 783(2) DISCREDITING for the purpose of proving the facts set out in such statements. State v. D'Adame, 84 N. J. Law, 386, 86 Atl. 414, Ann. Cas. 1914B, 1109; State v. Kysilka, 85 N. J. Law, 712, 90 Atl. 309. It was harmful error, therefore, to receive in evidence the prior statement of Mrs. Gorddard for the purpose for which it was offered.

In a prosecution for homicide, it was erroneous for the court to permit the jury to determine, by comparison of a statement made by a witness in the prosecutor's office with her testimony on the stand, whether she told the truth when she made the statement or told it on the stand.

[Ed. Note. For other cases, see Criminal [3] From what has already been said it Law, Cent. Dig. § 1875; Dec. Dig. 783(2).]] was manifestly erroneous for the trial court

to permit the jury to determine, by a com- [Terrace in the township of Weehawkin. The parison of this statement with the testimony plaintiff was proceeding down the terrace given by the witness while on the stand, toward the juncture of Highwood avenue whether she was telling the truth when she and the boulevard, followed by the defendmade the statement, or telling it when she ant's automobile. The plaintiff was on the was on the witness stand and under cross-right-hand side of the terrace and turned to examination by counsel for the defendant. The written statement is not printed in the state of the case. We are told by counsel that it was lost after having been sent to the jury room. Its absence, however, is not material, by reason of the fact that its purport is made plain by what was said by the prosecutor of the pleas when offering it in evidence, and by the court in the charge to the jury.

We have examined the other assignments of error and grounds of reversal, and find them without merit. They are not of sufficient importance to require specific mention. The judgment under review will be reversed for the reasons stated.

(88 N. J. Law, 445)

PASCHEL v. HUNTER et al. (Supreme Court of New Jersey. March 9, 1916.)

1. HIGHWAYS 176-LAW OF THE ROADOVERTAKING VEHICLES.

Under the statute requiring vehicles when overtaken by another to keep to the right, an automobile when overtaking a bicycle going in the same direction should pass to the left, though to do so requires it to cross to the left side of the road.

[Ed. Note. For other cases, see Highways,

Cent. Dig. § 465; Dec. Dig. 176.]

the left to go into the avenue without giving any signal, and did not see the car until too late to avoid a collision, in which the hind wheel of the bicycle struck the hind wheel of the car. The car was running at a fair rate of speed and would have passed to the left of the bicycle had the latter held its course instead of turning.

It was proper for the trial court to leave to the jury the questions of negligence and contributory negligence, although if the verdict were before us upon a rule to show cause it would be set aside as being against the clear weight of the evidence.

[1, 2] The judgment is here upon appeal, and the state of the case shows that the trial court refused to charge the jury that:

"The defendant was observing the law when he passed to the left even if it would take him across the centre line of the road to the left side."

This was a correct statement of the legal situation that results from the statutory mandate that a vehicle when overtaken by a carriage shall keep to the right so as to permit such carriage to pass; for, of course, if the foremost vehicle must keep to the right, the overtaking one must pass to the left. It was highly important to the defendant that the jury should be informed upon this point for the reason that the plaintiff had introduced evidence as to the condition of the right side In an action for injuries to a bicycle rider of the terrace tending to show that the dewho collided with defendant's overtaking auto-fendant was on the left of the road solely for mobile which attempted to pass him to the left and crossed to the left side of the road in order to do so, where the bicycle's rear wheel struck the rear wheel of the automobile so that the only rational basis for a finding of negligence by defendant was that he was on the wrong side of the road, the refusal to instruct that he was observing the law in passing to the left, though he had to cross the center line of the road, was prejudicial.

2. APPEAL AND ERROR 1067-PREJUDICIAL ERROR-REFUSAL OF INSTRUCTION.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067; Trial, Cent. Dig. § 475.]

Appeal from District Court of Weehawken, Action by Carl Paschel against Charles Hunter and another. Judgment for the plaintiff, and defendants appeal. Reversed. Argued November term, 1915, before GAR. RISON, TRENCHARD, and BLACK, JJ.

Griffin & Griffin, of Jersey City, for appellants. Otto Venino, Jr., of Union, for appellee.

his own convenience and against the law. Indeed, it is difficult to account for the verdict as to the defendant's negligence upon any rational theory other than that the jury thought his car was upon a part of the road where it had no right to be. If the car, while properly passing to the left of the bicycle, was run into by the plaintiff's wheel which escaped hitting the front of the car, which was two feet wider than the rear, it is difficult to see of what act of negligence the defendant was guilty.

The denial of the request was therefore injurious error, for which the judgment of the district court must be reversed.

(85 N. J. Eq. 454) MATTSON v. MATTSON. (No. 35-794.) (Court of Chancery of New Jersey. Dec. 31, 1915.) DIVORCE 156-FAILURE TO ENTER DECREE

ABSOLUTE-MOTION.

In an action for divorce, where the petitioner had been granted a decree nisi and had declined to enter a decree absolute in her favor for more than two years after becoming entitled to do so, upon motion of the defendant to

compel petitioner to take a final decree or dis-3. ESTOPPEL 97-EQUITABLE ESTOPPELWHAT CONSTITUTES. continue the action, the decree nisi will be opened and the petition dismissed, unless within 30 days the petitioner enters a decree absolute. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 518, 528-531; Dec. Dig. 156.1 Petition for divorce by Henrietta Mattson against James M. Mattson. Decree nisi for petitioner, and defendant presents a motion to compel petitioner to take a final decree or discontinue the action. Motion granted.

Where complainant, who purchased land, paying full consideration and being admitted into possession, but never receiving a deed, stood by after the death of the vendor and without objection allowed the premises to be sold by the administratrix to a third person, there was no estoppel; it not appearing that the sale was confirmed by the orphans' court in favor of the administratrix preventing specific performance, and the third person not being a party to the

suit.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 289; Dec. Dig. 97.]

Bill by John Antonio D'Elissa against Rose D'Amato, individually and as administratrix of the estate of Francesco D'Amato, and others. Decree for complainant.

Anthony Botti, of Jersey City, for complainant. Blakeman & Scarano, of Newark, for defendant.

(85 N. J. Eq. 476)

YUCKER et al. v. MORRIS et al.
(No. 38/34.)

1916.)

[1] The contract has been clearly, definitely, and unequivocally proven, and, having been performed by the complainant, this court has power to decree specific perform- (Court of Chancery of New Jersey. Feb. 25, ance, even though the contract be oral. Wharton v. Stoutenburgh, 35 N. J. Eq. (8 Stew.) 266; Clement v. Young & McShea Amusement Co., 69 N. J. Eq. (3 Robb.) 347, 60 Atl. 419; 1 Pomeroy's Eq. Juris. § 103.

JUDGMENT 793(2) — NAMES
DIFFERENCE IN NAME.

2-LIEN

in the district court may be entered in a court of Under a statute providing that a judgment common pleas, and when so entered becomes a lien on land, since a legal name consists of one given name and one surname, a judgment of recthe effect of a judgment against "Thomas E. ord against "Edward Morris" would not have Morris" or "T. Edward Morris" as against an innocent purchaser.

[2] The defendants also claim that the decree should be in their favor because of the laches of the complainant in failing to obtain a deed or bring this suit during the lifetime of Francesco, who was familiar with the whole transaction. I do not agree with [Ed. Note.-For other cases, see Judgment, the defendants in this claim. The undisput-Cent. Dig. § 1; Dec. Dig. 2.] Cent. Dig. § 1384; Dec. Dig. 793(2); Names, ed evidence, received without objection, clearly proves: (1) Full performance by the comSuit by William Yucker and others against plainant; (2) the entry into possession of Arthur Morris and others. Controversy be the lands with the assent of Francesco; (3) tween the defendants the Highland Trust complainant asked repeatedly for a deed, and Company and the executors of Louisa M. Francesco made excuses for not complying; judgment. Decree for Highland Trust ComTournade touching their rights under the

(4) the improvement of the lands by expenditures by the complainant to an amount more than double the purchase price of the lands; (5) the failure of Francesco to demand rent or other charge for the use and occupation of the premises; (6) in fact, the utter abandonment of the premises to the complainant. All of this makes the complainant's right so clear that to apply the doctrine of laches would aid in the perpetration of a fraud.

pany.

Leon Abbett, of Hoboken, for executors. Geo. J. McEwan, of West Hoboken, for Highland Trust Co.

in whose hands the funds then were, signed June 13, 1914, delivered to the trust company, and shortly thereafter delivered to the special master. The executors found their claim upon a judgment obtained by their testatrix on May 12, 1914, in the Hoboken district court (as appears by the transcript of the judgment as docketed) against "Edward Morris" ("Edward" being a middle, and not the Christian, name), and afterwards, on May 14, 1914, docketed in the court of common pleas of Hudson county. It is stipulated in the agreed state of facts:

GRIFFIN, V. C. The dispute in this case is between two defendants touching the right to funds in court allotted to T. Edward Morris, a tenant in common, defendant in the [3] The defendants also assert an estop-above suit for partition. The Highland Trust pel against the complainant under the fol- Company claims under an order drawn by lowing state of facts: The administratrix Thomas E. Morris upon the special master, offered a number of lots for sale, including the premises in question. D'Elissa, they say, stood by without protest, and heard the premises struck off to Philip Tumulty for $2,300, who paid a deposit of $230. There is no evidence, however, that the sale has been confirmed in the orphans' court and a deed delivered. Nothing in this suit can affect any right which Mr. Tumulty may have; he not being a party hereto. The estoppel, if it rises at all, must be between the parties to this suit, and it is admitted that prior to the sale a question arose between the complainant and defendants as to the ownership of the property; that D'Elissa asserted his claim, and there was an understanding between counsel that a bill should be filed to settle the dispute. Under such a state of facts, I fail to see upon what theory the defendants can claim the benefit of an estop

pel in their favor against the complainant. As to the wife, she did not join in the agreement and was not a party to it, and the decree should not go against her individually directing her to convey her dower. As the contract was fully performed, and there is no purchase money to be paid to the administratrix, the bill will be dismissed as against her, individually and as administratrix.

I will therefore advise a decree directing the heirs at law to specifically perform.

"That T. Edward Morris, defendant herein, M. Tournade obtained judgment in the district is the same person against whom said Louisa court of the city of Hoboken, as hereinafter set forth; that said Morris is sometimes known as T. Edward Morris'; sometimes as Thomas E. Morris'; sometimes as 'Eddie Morris'; sometimes as 'Edward Morris.'

From these facts it is argued by the executors that the judgment is good as against Thomas E. Morris or T. Edward Morris, and therefore is good against the world. The record in the cause is also stipulated into the agreed state of facts.

In Dilts v. Kinney, 15 N. J. Law (3 Vr.) 130, where the plaintiff sued as Margaret Kinney, Chief Justice Hornblower said:

the name of Margaret Kinney as of Margaret "It was sufficient if she was known as well by N. Kinney, or Margaret Ann Kinney. The law