(113 A.)

[2] It will be observed by a reading of these opinions which we have cited that, in each of them, although the declaration was held good on general demurrer, it was pointed out that they would each of them have been struck out, on motion for lack of certainty and failure to state the specific act of negligence which was charged against the defendant company or the particular employé responsible therefor. But the motion to strike out, referred to in these cases, was that provided by the twenty-fourth section of the act of March 17, 1855, entitled "An act to simplify the pleadings and practice in courts of law" (P. L. p. 295), as a substitute for the pleading then known as a special demurrer, and which was abolished by the twenty-third section of the same act. The twenty-fourth section of that statute now appears as section 110 of our present Practice Act (3 Comp. St. 1910, p. 4086), and declares that—

attacked by a general demurrer, upon the without any specification of what constitutground that it disclosed no cause of action; ed the negligence, or what employé was and we think that it must be answered in guilty of it, discloses the existence of a cause the negative. In the case of Central Rail- of action against the defendant, and will road Co. ads. Van Horn, 38 N. J. Law, 133, therefore be sustained as against a general 138, the defendant interposed a demurrer to demurrer. the second count of a declaration, which showed merely that the plaintiff was in one of the cars of the defendant company under a duty by it to carry her safely, and while there that she was "through the negligence, carelessness, and misdirection of the defendant and its agents and servants, thrown from and under the coaches of the said defendant." It was held by the Supreme Court that, although this averment was so uncertain and insufficient in detail as to afford the defendant little, if any, information as to what the specific act of negligence was, or what agency of the company was responsible for it, it was clearly good on the general demurrer; the defect being one of form, and not of substance. In Breese v. Trenton Horse Railroad Co., 52 N. J. Law, 250, 253, 19 Atl. 204, a count, which stated in general terms that by the careless management of the car in a public street by the agents of the defendant it thereby ran over the body and arm of the plaintiff, was held good on general demurrer. In Race v. Easton & Amboy Railroad Co., 62 N. J. Law, 536, 41 Atl. 710, a count in a declaration, simply averring, in effect, that by reason of the negligent and improper running of defendant's railroad train, and blowing of the whistle on its locomotive, a horse which was being driven on the highway by the plaintiff became frightened and overturned the wagon, and that plaintiff was thereby thrown out and injured, although not specific enough for a proper pleading, was permitted to stand as against a general demurrer. Ferguson v. Western Union Telegraph Co., 64 N. J. Law, 222, 44 Atl. 849, is to the same effect. In Minnuci v. Philadelphia & Reading Rail road Co., 68 N. J. Law, 432, 53 Atl. 229, it was declared that an averment in a declaration which stated that the plaintiff's injuries were caused solely by the negligence of the defendant, without more, although it did not fulfill the requirement of the rule of pleading that the certainty of the state ment of the plaintiff's case must be such as in a reasonable measure to apprise the defendant of the case to be made against him, was good on general demurrer.

The opinions referred to are those of the Supreme Court; but the soundness of the Judicial declarations has never been challenged, so far as we are aware, and they meet with our approval. It is hardly necessary to add that they are dispositive of the present appeal; for they establish the principle that an averment in a declaration that the plaintiff's injuries resulted directly from the

"The court or a judge may on four days' notice strike out any pleading which is irregular or defective, or is so framed as to prejudice, embarrass or delay a fair trial of the action."

The distinction between the motion to strike out just referred to and that provided by the present fortieth rule of the Supreme Court is the distinction which existed at common law between a special and a general demurrer; the one being directed at matters of form and the other at matters of substance. The scope of the former motion-that is, whether it can be availed of after a party has pleaded issuably-is, of course, not involved in the present appeal, and, naturally, has not be considered by us. [3, 4] Another matter should, we think, be adverted to by us, as the case must be sent back for retrial. In the colloquy between court and counsel, during the argument of the motion to strike out under rule No. 40, the attorney for the appellant stated that all he would be able to prove, if the trial of the case was permitted to proceed, was that his client was standing on the back platform of the car, and the motion of the car threw her; and, apparently, this statement was considered by the court to be material in determining the question whether or not the complaint exhibited a cause of action. But this is not so. Whether or not the proofs offered by the plaintiff would support the averment of the complaint could not become a live question until after the validity of the pleading had been established. Assuming the validity of the complaint and the insufficiency of the probata to support it, the

PARKER, J. This is a dispute over the right of Jersey City to tax certain personal

either upon the plaintiff's opening or when he has rested his case. The judgment under review will be re- property of the bankrupt firm of Dailey & versed.

Personal property of a bankrupt, in the possession of a trustee in bankruptcy, is liable to taxation in the taxing district where such property is "found" on the date fixed by law for assessment of taxes; and this includes money deposited in bank.

Ivins, for taxes of the year 1918. The two principal questions are: First, whether the property now in question was taxable at all under the laws of this state because of the title, possession, qualified ownership, or whatever it may be called, to which it was subjected at the taxing date, May 20, 1918; and, secondly, whether the property had such a situs within the taxing district of Jersey City as to permit the tax lien to attach. By the various appeals from the local assessors to the county board and thence to the state board, and the certiorari from the Supreme Court, all disputed matters seem to have been eliminated except a fund in bank and a tugboat which on May 20 was moored (as we were informed on the argument) in the South Cove of Jersey City.

As to the fund in bank, it is stipulated to be part of the proceeds of sale of a shipyard of Dailey & Ivins, and it is claimed that it should not be included in the valuation be

2. Taxation 87-Statutory provision that cause the attorneys in the case stipulated personalty in possession of trustee shall be "that the question of the right to assess assessed in his name directory merely. against the proceeds of sales is not to be The statutory provision that "personal considered on this appeal" (to the State property in the possession or under the control Board). If it was meant thereby to stipuof a trustee * shall be assessed in his late a legal rule for the State Board and the name as such" (4 Comp. St. 1910, p. 5091), is courts, such a stipulation, as the Board propmerely directory, and has no force in exempt-erly pointed out, is futile. The Board held ing the property itself from the general lan- this fund taxable and the Supreme Court guage of the statute making such property tax-affirmed that ruling. Both tribunals prop

able.

3. Taxation 87-Ministerial court officer in possession of seized property not liable for tax thereon.

It seems that a ministerial officer of court having in his possession seized property by virtue of court process is not liable for tax thereon; but this does not exempt the property itself.

4. Taxation 71-Vessel permanently moored within state awaiting sale liable for taxes

therein.

erly took into consideration the questions of law involved; and our sole concern here is whether they rightly decided them. As the same reasoning applicable to this fund applies in part to the tugboat, both will be considered together in this aspect.

[1-4] On this phase of the case the argument seems to be that the fund and the tugboat, being held by the trustee in bankruptcy, were in the custody of the law, and that property in such custody is not taxable. On the broad question whether property of A vessel permanently moored in the tidewaters of New York Bay or the Hudson rivera bankrupt in the hands of a trustee in bankwithin the territorial lines of New Jersey, awaiting sale, and so found on the date of the annual assessment, is liable to taxation in New Jersey.

ruptcy is exempted from state taxation, the answer of the United States Supreme Court is decidedly in the negative. Swarts v. Hammer, 194 U. S. 441, 24 Sup. Ct. 695, 48 L. Ed. 1060. This is dispositive of the taxability of the bank deposit in this aspect. As to the tugboat, the appellant further argues that on May 20 it was not actually in his possession, but in that of the marshal, and that by reason of a clause in the tax act of 1903 (4 Comp. St. 1910, p. 5075) it is not sub

ject to taxation. In dealing with this, it should be borne in mind that the tax was imposed against "Dailey & Ivins, George G. Tennant, trustee in bankruptcy."

Appellant invokes the language of section 11 of the tax act of 1903 (C. S. p. 5091),

(113 A.)

on May 20, 1918, in the taxing district of Jersey City. In our opinion it was so taxable. As an active tug plying in the waters of New York Harbor it was taxable at the residence of the owners or the permanent situs of the property, it is immaterial which. American Mail Steamship Co. v. Crowell, 76 N. J. Law, 54, 68 Atl. 752; Shrewsbury v.

which, after prescribing the place of taxa- from such claim of exemption it was taxable tion, provides that "personal property in the possession or under the control of any person as trustee, guardian, executor or administrator, shall be assessed in his name as such," and argues that, because he as trustee did not have entire possession or control of the tug, ergo it was not taxable. But this statutory language is merely directory with respect to the differentiation of trust prop- Merchants' Steamboat Co., 76 N. J. Law, 407, erty from individual property in the name 69 Atl. 958; West Shore R. Co. v. State to which it is assessed, and in no wise as to Board, 82 N. J. Law, 37, 81 Atl. 351; Id., 84 its general taxability. One good reason for N. J. Law, 768, 85 Atl. 826. But with the such differentiation is to spare the trustee's bankruptcy its condition became one of pasindividual property from seizure for nonpay- sivity; it was a mere chattel secured from ment of taxes on trust property. Whatever drifting and awaiting a sale. Had it been the reason or reasons, the clause has no bear-drawn out on a ship railway or even tied up ing on taxability of the property. That is to a wharf on the Jersey City water front, its settled by section 2, which in broad and taxable situs would be indubitable. While sweeping terms subjects to taxation "all the point does not seem to be definitely arproperty, real and personal, within the ju- gued, we gather from the assertion that the risdiction of this state, not expressly exempt- tug was in the "tidewaters of New York ed by this act, or excluded from its opera- Bay" that it is claimed to have been out of tion." The argument therefore simmers the taxing Jurisdiction of New Jersey bedown to this, that because appellant had not cause of the interstate treaty limiting the possession or control of the tug, the assess- "jurisdiction" of New Jersey on the waters ment in his name was erroneous. But this of New York Bay and the Hudson river. C. does not invalidate it; on the contrary, sec- S. p. 5358. But this jurisdiction has been tion 30 of the act (C. S. p. 5109) provides that held by the courts of both New York and "no assessment of real or personal property | New Jersey to be a jurisdiction simply for shall be considered invalid because listed or the exercise of the police power. People v. assessed in the name of one not the owner Central R. R. of N. J., 42 N. Y. 283; Central thereof." To quote appellant's brief, "the R. R. Co. v. Jersey City, 70 N. J. Law, 81, tax law does not deal with finespun theories 56 Atl. 239; s. c., 209 U. S. 473, 28 Sup. Ct. of title." So far as the clause relied on is 592, 52 L. Ed. 896. In the opinion of Mr. concerned, we conclude that it had no effect Justice Garrison in 70 N. J. Law at page 97, at all on the liability of the tug to taxation. 56 Atl. at page 245, it is declared that "the It is next argued that the tug was further sovereign power of taxation over all the terin the "custody of the law" because of the ritory thus defined (i. e., to the middle of the possession by the marshal, so as to be ex- Hudson river) resides in the state of New empt. The facts are that the tug was regis- Jersey." See Cook v. Weigley, 72 N. J. Eq. tered at the New York custom house and had 221, 65 Atl. 196. A vessel more or less perbeen ordinarily employed in and about the manently moored within the territory is, in waters of New York Harbor. About the our opinion, personal property "found" withtime of the bankruptcy (appellant was ap- in the taxing district, in the same manner as, pointed trustee May 2, 1918) the tug was e. g., coal on storage pending a sale and rebrought into tidewaters on the New Jersey moval. Lehigh & Wilkes-Barre Coal Co. v. side adjacent to Jersey City, and moored Junction, 75 N. J. Law, 922, 68 Atl. 806, 15 there apparently unused, and so remained L. R. A. (N. S.) 514. It is pertinent to note, until after it was sold, June 17, 1918. During this period, as we understand the evidence, several libels in admiralty were filed, and served by the United States marshal for the district of New Jersey. Sale was made jointly by the appellant as trustee and by the marshal, and from the proceeds the libels were paid off and the balance was paid to or retained by the trustee. The sale price was $30,000, and this was adopted by the State Board as the fair value of the tug, which was subjected to tax at that valuation to gether with the fund already in bank.

while on this subject, that the libels against this tug were filed in the United States District Court for the District of New Jersey, and the seizure was made by the marshal of that court, in conformity, as it seems to us, with the statutory provision that "the state of New Jersey shall constitute one judicial district" (Rev. Stat. U. S. § 531; Comp. Stats. U. S. § 1082) treated as meaning that the district extends to the middle of the river for all purposes of executing civil process out of that court.

The tug, then, being legally "found" in As a preliminary to ascertaining whether the taxing district of Jersey City, it only rethis tug was exempt because in the custody mains to inquire whether because under of the marshal, it is necessary to determine seizure by the marshal it was exempted by

its general owners, Dailey & Ivins, or the trustee in bankruptcy, either by provision in the statute or rule laid down by decision of the courts. It is not exempted by statute; on the contrary, the language of the second section of the act of 1903, already quoted, plainly includes it in its purview.

admit of either of two constructions, it is the court's duty to resort to the title to ascertain the legislative intent.

2. Railroads 350 (13)-Statute making contributory negligence question for jury applicable to injuries to property.

P. L. 1910, p. 490, making contributory negligence a question for the jury in an action against a railroad which has failed to install safety devices at crossing, held applicable to tions for injury to persons, in crossing acciactions for injury to property, as well as acdents, in view of title referring to liability for

standing use of words "person injured" and "injury or death" in the body of the act. Parker, Bergen, Heppenheimer, and Williams, JJ., dissenting.

Appeal from Supreme Court.

Action by Thomas S. Pancoast against the Director General of Railroads. Judgment for defendant, and plaintiff appeals. versed.

Re

Bleakly & Stockwell, of Camden, for appellant.

Bourgeois & Coulomb, of Atlantic City, for respondent.

But appellant further invokes the rule laid down at the end of the opinion of this court in Trustees v. City of Trenton, 30 N. J. Eq. at page 686, where mortgages to the Chancellor in his official capacity were held exempt. This rule has had a somewhat check-injuries to "persons or property," notwithered career, but an examination of its history is not now to the point, though later statutes and decisions are cited for convenience. Davison v. Silvers, 41 N. J. Law, 505; P. L. 1879, p. 54; P. L. 1882, p. 120; Ming's Case, 39 N. J. Eq. 1; Shotwell v. Dalrymple, 49 N. J. Law, 530, 10 Atl. 386; Dunham v. Cox, 44 N. J. Eq. 273, 14 Atl. 123; P. L. 1887, p. 163; Elizabeth v. Chancellor, 51 N. J. Law, 414, 17 Atl. 942; Dilts v. Taylor, 57 N. J. Law, 369, 373, 30 Atl. 599; Chancellor v. Elizabeth, 64 N. J. Law, 502, 45 Atl. 795; P. L. 1898, p. 202; Swope v. Fraser (Ch.) 58 Atl. 531; Chancellor v. Elizabeth, 65 N. J. Law, 479, 47 Atl. 454; Chancellor v. Seiberlich, 75 N. J. Eq. 501, 510, 72 A. 945; Tax Act 1903, § 3, par. 2 C. S. p. 5078. The rule is something of an anomaly, and assuming for present purposes that it stands unimpaired at this time, it is limited in scope and should not be extended, especially in the face of the sweeping language of section 2 of the statute, which was re-enacted in 1918. P. L. pp. 847, 848. This rule was never broad enough to exempt real or personal estate in the administrative charge of a receiver or similar officer (N. J. Southern R. R. Co. v. Board, 41 N. J. Law, 235, 248, 249; Kirkpatrick v. Board, 57 N. J. Law, 54, 29 Atl. 442); and we think our reports will be searched in vain for a case wherein it was held, or even claimed, that real or personal property otherwise liable to taxation is exempt because of having been levied on or attached by court process. The court officer himself (as in this case the marshal) is ordinarily not liable for the tax (37 Cyc. 797; In re Kellinger, 9 Paige Ch. [N. Y.] 62); but that does not exempt the property nor, as we view it, the general owner.

These considerations lead to an affirmance of the judgment.

GUMMERE, C. J. The plaintiff in this case sued to recover compensation for damage done to an automobile truck resulting from a collision between it and a train of the West Jersey & Seashore Railroad Company, which the defendant was operating. The defense interposed was that the collision occur. red largely, if not wholly, through the negligence of the plaintiff's employé, who was driving the truck at the time. At the trial, after both sides had rested, defendant's counsel moved for the direction of a verdict, upon the ground that the driver's negligence had been conclusively shown. The motion was opposed because, as plaintiff insisted, the question of contributory negligence, by force of the act of April 12, 1910 (P. L. p. 490), was one which could not be decided by the court, but must be left to the determination of the jury. The trial court considered that the statute appealed to did not apply to the present case, and directed a verdict in accordance with the defendant's request. From the judgment entered on that verdict the plaintiff appeals.

The plaintiff's truck was being driven along the highway from Woodbury to Salem. No gates, bell, or other device, usually employed to warn travelers on the highway of an apPANCOAST V. DIRECTOR GENERAL OF proaching train, had been installed by the de

(95 N. J. Law, 428)

RAILROADS.

fendant, or by the company whose road he

(Court of Errors and Appeals of New Jersey. was operating, at the point where the railFeb. 28, 1921.)

road crossed the highway. Nor had any flagman been stationed there. The statute to which the plaintiff appealed provides that"In any action against any steam railroad company brought to recover damages for in

(113 A.)

juries or death occurring at any crossing of the right of way of such steam railroad company, where such company has not installed any safety gates, bell or device usually employed to warn and protect the traveling public at said crossing, which injury or death are alleged to be due to the negligence of such railroad company or its agents, the plaintiff in such action shall not be nonsuited on the ground of contributory negligence on his own part, or on the part of the person for whom such suit is brought, but in all such cases it shall be left to the jury to determine whether the person in jured or killed was exercising due and reasonable care under the conditions existing at said crossing at the time of such injury or death, and if the jury shall determine that the person injured or killed was not exercising due and reasonable care," etc.

"An act concerning the liability of railroads for injury to persons or property caused by running cars across public streets and highways at which crossings no safety gates, bell or other device to give warning to the traveling public have been installed."

This title declares in express terms that the object sought to be accomplished by the enactment was one which related to the liability of railroads for injury to persons or property; and so, upon the assumption that the language of the body of the act is capable of being construed either in the way contended by counsel for defendant or in the way contended by counsel for the plaintiff, we must adopt that which brings the enacting part into harmony with the title.

Considering, as we do, that the statute properly construed applies, not only to persons who have suffered bodily injury, but also to persons who are injured by the destruction, in whole or in part, of property belonging to them, we conclude that there was error in refusing to submit to the jury the question of the contributory negligence of the plaintiff's driver, and that the judgment under review must be reversed.

PARKER, BERGEN, HEPPENHEIMER, and WILLIAMS, JJ., dissent,

(95 N. J. Law, 557) WILD v. CAHILL et al. (No. 72.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.)

9-Person in whose care property is assessed presumed to be owner.

[1, 2] The argument of counsel for the defendant, made before the trial court on the motion to direct a verdict, and repeated before us, is that the statute in question only applies where the suit is brought to recover compensation for injury to the person of the plaintiff, and not where the ground of action is based upon the total or partial destruction of his property. The contention is based upon the use by the Legislature of the words "person injured," appearing twice in the latter part of the cited provision, which it is said plainly indicates a design on the part of the lawmaking body that the scope of the statute should only extend to bodily hurts, and that, if the meaning of the words standing alone be doubtful, this design is emphasized by the use of the words "or killed" in juxtaposition to "person injured." We are not impressed with the soundness of this contention. The whole act is to be read to-1. Property gether. By its first clause the statute is made applicable in any action brought to recover damages "for injury, or death." The omission of the word "personal" in this clause seems to us significant, and the repetition of this phrase appearing some lines later, namely, "which injury or death," gives added weight to the omission. The most that can be said in favor of the defendant's contention is that the body of the act fails to disclose with certainty whether, when construed as a whole, it expresses the limited purpose claimed by defendant's counsel, or the more extensive one urged by counsel for the plaintiff. McCarthy v. Guild, 53 Mass. (12 Metc.) 291. When words used in the enacting part of a statute are of doubtful import-that is, where they will admit of either of two constructions-it is the duty of the court to resort to the title thereof for the purpose of ascertaining if possible the legislative intent. Horner v. Webster, 33 N. J. Law, 388, 400; Evernham v. Hulit, 45 N. J. Law, 53; Dobbins v. Northampton, 50 N. J. Law, 499, 14 Atl. 587. Referring to the title of the act now under consideration, we find it reads as follows:

The ownership of property will be presumed to be in the person in whose name it is assessed for taxation, or, in the case of his death, in his heirs at law.

2. Taxation 685-Legality of confirmation of sale under Martin Act properly challenged by presumptive owner of undivided interest.

One who claims ownership of undivided interest in land as purchaser from an heir at law of the person in whose name the land was assessed for the purpose of taxation could challenge the legality of proceedings looking to the confirmation of sale under the Martin Act, being the presumptive owner of an undivided

interest in the land.

Appeal from Supreme Court.

Proceeding in the circuit court by Christina M. Wild against Florence Cahill and others to test proceeding to confirm sale of land under the Martin Act. Proceedings set aside in the Supreme Court, and respondents appeal.

Affirmed.

On appeal from the Supreme Court, in which court Chief Justice Gummere filed the following opinion:

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