which he would not have been required to, do except for the unlawful act of the city; that he performed the duties of the office to which he was so assigned, and received from the city the regular compensation incident to that office. From this it would appear that he at all times belonged to the police force of the city, and that the only injury he has suffered for which he could recover is the loss of compensation between the two offices. In McManus v. Newark, 49 N. J. Law, 175, 6 Atl. 882, this court held that the change of a member of the police force from the position of detective to patrolman was not within the terms of the act restraining the right of removal from office, and that the municipal authorities might lawfully transfer from one branch to another of the same service. In that case the prosecutor was acting as detective, and his complaint was that he had been assigned to duty as a patrolman without notice or hearing, but the court held that he was still on the force, and, as the prosecutor had not been removed, suspended, expelled, or discharged from the police force, he was not within the terms of the protective statute, and the court said: "If questions of precedence and preference among the members of the police force are to be settled by hearing on evidence and argument, there can be no proper subordination, no selection or preference for skill or aptitude for special service." In Douglass v. Jersey City, 53 N. J. Law, 118, 20 Atl. 831, in which the opinion was written by Mr. Justice Scudder, who also wrote the opinion in McManus v. Newark, supra, it was held unlawful to reduce a detective who was paid $100 to the position of patrolman at a less salary without notice to him; the court say ing that the case differed "from the case of McManus v. Newark, 49 N. J. Law, 175, 6 Atl. 882, where the duties were different, but the compensation the same, and resembles in principle Michaelis v. Jersey City, 49 N. J. Law, 154, 6 Atl. 881, where there were different duties and decreased pay." In Leary v. Orange, 59 N. J. Law, 350, 35 Atl. 786, it was held that the prosecutor was improperly removed from the office of desk sergeant and assigned to the position of patrolman without notice or hearing, but in that case there was a difference in the compensation. The result of the decisions in this state seems to be that it is unlawful to transfer a member of a police force from one position to another at a lower salary without notice. but it is nowhere held that the officer ceas from which he has been removed as would equal the difference between the respective salaries of the two positions. Our attention has been called to the case of People v. French, 91 N. Y. 265, as sustaining the position taken by the appellant, but in that case the application for mandamus was limited to the difference between the salary of a patrolman and that paid to the applicant while on "sick leave." The applicant in that case, becoming ill and unable to perform his duties as patrolman, was paid only one-half the amount of compensation due his office for part of the time, and for another part only one quarter, and the only question passed upon was whether the department was justified in refusing to pay full compensation. It was held that it was not, but that payments made to a policeman while not on duty because of sickness, should be deducted. In Fitzsimmons v. Brooklyn, 102 N. Y. 536, 7 N. E. 787, 55 Am. St. Rep. 835, it was held that, where the officer was discharged and not permitted to perform any services in the department to which he belonged, he was not required to account for money earned elsewhere. This case is not an authority for the claim that, if the prosecutor, instead of being discharged, is deprived of a part of the compensation to which he is entitled, he would not be required to credit the amount which had been paid to him for services in another branch of the same department to which he had been improperly assigned. The judgment below is affirmed. (77 N. J. L. 428) QUINN v. SEA ISLE CITY et al. (Supreme Court of New Jersey. Feb. 23, 1909.) MUNICIPAL CORPORATIONS (107) — Ordi NANCES-PASSAGE OVER MAYOR'S VETO. Where an act required a vote of two-thirds of all the members of common council to pass an ordinance over the mayor's veto, held that, where the council consisted of seven members, a vote of four, one member being absent, one voting to sustain the veto, and a third refraining to vote because interested in the ordinance, was not effective to override the veto. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. § 235; Dec. Dig. § 107.*] (Syllabus by the Court.) Certiorari at the prosecution of Bernard J. Quinn against the Sea Isle City and others to review an ordinance of said city. Ordi nance set aside. Argued November term, 1908, before GAR RISON, PARKER, and VOORHEES, JJ. Carrow & Kraft, for prosecutor. J. M. E. Hildreth, for defendants. es to be a member of the police force. We are of opinion that if a member of a police force serves in a position to which he has been assigned, and accepts the compensation incident to his new position, he is, if illegally transferred, at least only entitled to so much of the compensation incident to the office VOORHEES, J. This is a certiorari to review an ordinance passed by the common council of Sea Isle City. The municipality is incorporated under revisions of an act entitled "An act relating to and providing for the government of cities of this state containing a population of less than twelve thousand inhabitants." Act March 21, 1899 (P. L. p. 96). The ordinance was passed, sent to the mayor for his approval, who returned it with his veto thereto. Thereupon council, composed of seven members, at its next meeting, with six members present proceeded to consider the mayor's objections and reconsider the ordinance, at which four members voted to pass the ordinance over the mayor's veto, one member voted to sustain the mayor's veto, and one member refrained from voting because financially interested in the railway which had an interest in the passage of the ordinance. The mayor declared the ordinance passed over the mayor's veto. The act under which the city is incorporated provides that after a veto the council "shall proceed to reconsider the same, and if on reconsideration it shall pass the common council by a vote of two-thirds of all the members it shall take effect." The vote under review was not a vote of two-thirds of all the members. Crickenberger v. Westfield, 71 N. J. Law, 467, 58 Atl. 1097; Stephany v. Liberty, etc., Glass Co., 69 Atl. 967. Even if it were considered that a member refusing to vote might be counted as voting "Aye," which is not conceded, yet a person, disqualified because of interest, could not be so counted. Traction Co. v. Board of Works, 56 N. J. Law, 431, 29 Atl. 163; Drake v. Elizabeth, 69 N. J. Law, 190, 54 Atl. 248. The ordinance is set aside. (77 N. J. L. 406) SYRING v. ZELENSKI. (Supreme Court of New Jersey. Feb. 23, 1909.) 1. HUSBAND AND WIFE (§ 23%)-CONTRACTS OF WIFE-RATIFICATION BY HUSBAND. Defendant's wife made a contract with the plaintiff for the performance of certain work. No express contract was made by the husband, but it was insisted that the contract was made by the wife as agent for her husband, and that he had ratified the contract of his agent, because at one time while the work was in prog ress he said to the plaintiff: "My wife is boss. Anything as far as the wife goes that's all right. You will get your money." Held, that this statement did not show a ratification by the defendant of a contract made by the wife for him as his agent. [Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 23%.*] 2. APPEAL AND ERROR (§ 938*) - DISTRICT COURTS-SETTLING STATE OF CASE. Where the law requires that the state of the case shall be agreed upon or settled within 15 days, unless the judge shall grant further time, the settling of such case by the court after 15 days will, in the absence of anything appear ing to the contrary, be presumed to have been done within the further grant of time authorized by the law. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 938.*] (Syllabus by the Court.) Appeal from District Court of Hoboken. Action by Robert Syring against Ignacy Zelenski. Judgment for plaintiff, and defendant appeals. Reversed. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. Tennant & Haight, for appellant. Clement De R. Leonard, for appellee. BERGEN, J. The state of the case, as settled by the trial court, shows that the plaintiff made a contract with the wife of defendant for the performance of the work sued for, and for which the judgment appealed from was rendered; that the plaintiff had no conversation with defendant about the work except once, when the defendant said, while the work was being done: "My wife is boss. Anything as far as the wife goes that's all right. You will get your money." Upon this evidence the trial court found that the contract was made by the wife as agent for her husband, and that there had been a ratification of the agent's contract in his behalf by the defendant. It is insisted by the appellee, the plaintiff below, that this finding of fact cannot be reviewed. The rule is well settled that in cases of this character the finding of facts will not be reviewed if the evidence is sufficient to sustain the finding; but in this case we have a right to consider whether the statements made by the husband, the defendant, are sufficient to sustain the finding that he ratified the act of his wife, to the extent of binding himself for its fulfillment. There is no finding that a contract was made by the husband as principal, and the evidence does not show ratification by him of the contract made by the wife; on the contrary it tends to show that the wife was acting on her own responsibility, and that she would pay. The appellee also argues that the state of the case was not signed within the time required by law. The act regulating appeals from the district court to the Supreme Court (P. L. 1902, p. 565) provides that a party may appeal if notice be given within 10 days (that was done in this case); that, if parties cannot agree on the state of the case, the judge, on being applied to, shall settle and sign it, after which it shall be transmitted by the appellant to the clerk of this court; that the case shall be agreed upon or settled within 15 days unless the judge shall grant further time. In this case the parties were not able to agree, and applied to the court to settle the case, and it does not appear that any one was responsible for the delay except the court, from which it is proper to infer, without any evidence or record to the contrary, that the time was extended by it. The statute does not require that there should be an order entered extending the time for settling the state of the case by the court; and in the absence of anything to the contrary the presumption is that the proceeding was regular. The judgment should be reversed. (77 N. J. L. 191) There was also testimony of the motorman tending to show that just before the accident he saw two men running from the place where the man lay. The court said: "It may be conceded that, if it were clear that the deceased was uninjured when lying upon the ground just before the collision, it BRINK v. NORTH JERSEY ST. RY. CO. might be inferred that the wound found up on the body (fracture of the skull) must have been caused by the impact of the fender upon his head. But it is not clear that the deceased was free from this wound before the et al. (Supreme Court of New Jersey. Feb. 9, 1909.) 1. APPEAL AND ERROR (§ 1099*) - REVIEW SUBSEQUENT APPEALS-LAW OF THE CASE. A second verdict for the plaintiff on sub-collision. On the contrary, it is in the highstantially the same evidence as that adduced on the first trial of this cause (see 67 Atl. 705) ordered set aside for the same reason. TIONS. This court having sent the case back for retrial on the ground that the weight of evidence indicated a cause of the death of plaintiff's intestate wholly unconnected with any negligence of defendant, and the evidence at the second trial being substantially the same, it was error to charge the jury that there was no evidence pointing to such extraneous cause. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1215.*] (Syllabus by the Court.) the track was attributable to his disabled est degree probable that his presence upon condition resulting from this injury. Eliminating volition from the conduct of the deceased, what could have caused his helpless condition? The theory of the counsel for plaintiff is entirely unsatisfactory. If, however, the deceased had already received the brain injury which caused his death, the problem is solved and the cause of his unconsciousness of danger is at once manifest. The deceased might have received his injury from the two men who were seen by the motorman running from the place where the man lay. A more probable theory is that he was injured by falling while attempting to alight from his wagon for some purpose. He may have become chilled and thinking to warm himself by walking, may have tried to step down from the wagon seat and his limbs having become cramped and stiffened by the cold and his sustained position, he stumbled and fell, striking his head against Alvah A. the iron rail of the trolley track. It seems Action by Margaret E. Brink against the North Jersey Street Railway Company and others. Verdict for plaintiff. Rule to show cause made absolute. Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ. J. A. Kiernan, for plaintiff. Clark, for defendants. PARKER, J. This case has been tried twice. After the first trial, a rule to show cause was argued before this court and made absolute; the opinion being delivered by Mr. Justice Reed (67 Atl. 705). That opinion gives an adequate synopsis of the testimony taken on the first trial, which does not materially differ from that now before us. One more witness was sworn, but his testimony elicited no new facts of importance. Upon the former rule this court held that the plaintiff had failed to sustain the burden of proof resting upon her of showing that the death of Mr. Brink resulted from injuries inflicted by the car of the defendant. In discussing the evidence, the court called attention to the facts that the deceased was lying on the track where he was afterwards struck by the trolley car and apparently in a state of unconsciousness; that the car was stopped after it had pushed the man about four feet; that prior to this accident the wagon in which the deceased was shown to have been driving was seen without a driver proceeding over the same road, Frelinghuysen avenue, parallel with the trolley line, and towards Mr. Brink's home in Elizabeth. manifest that the injury to the deceased may have occurred in the way suggested and as already observed the fact of the deceased's unconsciousness or helplessness before the impact of the car fender is expli cable upon the assumption that the injury did occur in some such way and is explicable upon no other rational theory." As a result of our examination of the evidence submitted on the second trial, we come to the same conclusion as that reached by this court upon the former rule to show cause, namely, that the evidence does not fairly support a finding that deceased came to his death as a result of the impact of the car, but that, on the contrary, the weight of evidence tends to show that the injury causing death had been inflicted before the car arrived, and are of opinion that the rule to show cause must be made absolute on this ground. It is true that a second concurring verdict on the same state of the evidence should cause the court to hesitate before granting a third trial (Brown v. Paterson Paper Co., 69 N. J. Law, 474, 55 Atl. 87); but this case falls within the class of cases mentioned in that decision as justifying the award of a third trial. But, aside from this, we think there was eiror in the court's charge. It will appear from the portion of the opinion quoted above that it was at least a legitimate inference from the testimony that Brink did not receive the fatal injury from the impact of the car fender, but in some other way, either through the assault of the two men who were seen running away or by having fallen from his wagon and struck his head on the rail. It is plain, therefore, that this was a proper question to submit to the jury. An examination of the judge's charge on the second trial, however, shows that no such question was submitted, but that on the contrary it was excluded. On this branch of the case the judge charged as follows: "You must be satisfied by a preponderance of evidence that the plaintiff has made out a case; that the injury from which this man evidently died was caused by a blow struck by the fender of the car. There is no evidence whatever in the case to show that the man had been in any altercation with any one, or that he had fallen from his wagon, and there is nothing in the case to show at all how he received the blow which caused his death unless it was from the impact of the fender of this car." As we read this portion of the charge, which is all that we find bearing on this aspect of the case, the jury were instructed that, while it was the duty of the plaintiff to satisfy them by a preponderance of evidence that the blow of the car caused the injury, there was no evidence in the case from which they were entitled to infer that the injury occurred in any other way. Such an instruction entirely disregarded the view expressed by this court in setting aside the former verdict, as quoted in part above, and was in our opinion clearly erroneous. Merritt Lane, for appellant. John Milton, for appellees. PARKER, J. The facts in this case are for the most part similar to those in the three applications for mandamus of Leonard, Coughlin, and Maxwell v. Fagen (N. J. Sup.) 69 Atl. 980. The present appellant, instead of applying for a mandamus on the city clerk to sign a pay warrant, brought suit against the city in a district court. The first item of his claim was awarded to him by the court below, and is not now in question. He appeals from the judgment against him as to the second item of $216.64. Appellant on December 7, 1906, was a police sergeant in Jersey City. On that date the board of police commissioners by order assigned him as captain to the Second precinct, stipulating in the order that the detail was temporary and determinable at pleasure of the board, and that during the detail the "said officers" should "be paid the salary of the position held before." Appellant entered on the duties of captain under this order and performed them until July 1, 1907, when he was promoted to the rank of captain. It is stipulated that his detail was to take the place of a captain suspended under charges, and that no one received captain's pay in place of the suspended officer from February 28 to July 1, 1907. On November 22, 1907, the police board passed a resolution, approved afterwards by the mayor, awarding to appellant $216.64, the difference between a sergeant's and a captain's pay from February 28th to July 1, 1907, part of the time he had served as acting captain. The city clerk refused to draw a warrant for this sum though there were funds to meet it, and the appellant For this reason, also, the rule to show brought suit as stated. We fail to see any cause must be made absolute. (77 N. J. L. 375) substantial difference between the circumstances in this case and those in Leonard v. Fagen, supra, or anything to take the case out of the general rule that a municipal of McDEVITT v. MAYOR, ETC., OF JERSEY ficer having a fixed salary is not entitled to CITY. (Supreme Court of New Jersey. Feb. 23, 1909.) MUNICIPAL CORPORATIONS (§ 186*)-POLICE OFFICERS-COMPENSATION. The assignment of a police officer to the duties of a higher rank does not entitle him to the pay of that rank, nor, in the absence of a legal contract or an enabling statute, to any extra pay for the increased responsibility and duties of such assignment. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 186.*] (Syllabus by the Court.) Appeal from District Court of Jersey City. Action by Charles McDevitt against the Mayor and Aldermen of Jersey City. Judgment for defendants, and plaintiff appeals. Affirmed. Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. extra compensation for an increase of his official duties in the absence of a statute or Contract providing for such increase. There was no such contract. The order assigning appellant to duty as captain gave specific notice that no extra pay was contemplated. It is claimed that this reservation was without authority of the board; but, even if it be disregarded, there is nothing to show the contrary and the burden of proving such contract was on'appellant. In Crane v. Shoenthal (N. J. Sup.) 69 Atl. 972, there was an express understanding for increased pay by virtue of which a city engineer was induced to undertake duties for which otherwise outside engineers would have been paid. In Evans v. Trenton, 24 N. J. Law, 764, the extra duties were held altogether outside the scope of the office. In the present case the For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes appellant was merely performing the duties of the next higher rank, as is done constantly in the army, for example, and for which only since 1898 the pay of the superior rank has been allowed by statute. Act April 26, 1898, c. 191, 30 Stat. 364; Act May 26, 1900, c. 586, 31 Stat. 211. The resolution of November 22, 1907, was not a contract, for the services had been performed long before. of L. Williams as defendant. The jurat of the affidavit is signed by one who appended to his name the title "M. C. C. of N. J.,” and it is claimed that the court will not take judical notice that this means a master in chancery. This question, however, we find unnecessary to discuss. Shortly after the issue of the district court attachment, another attachment was begun in the Passaic circuit court against Louis Williams, who is said to be the same person as the L. Williams made defendant in the first suit. The prosecutor was appointed auditor in the circuit court suit and promptly intervened in the district court attachment, asking that the district court should quash its writ of attachment on the ground that the defendant's name was not properly stated in the affidavit and writ. The court not only refused to quash the attachment, but made an order, on motion of the plaintiff's attor ney, that the affidavit, writ, and all other papers filed in the cause be amended by inserting the name Louis Williams, instead of L. Williams, and denying the auditor's motion on the ground that the defects urged in said motion were properly amendable, and the circumstances of the case were shown to Nor was there any authority in law for the resolution of November 22d. If it be regarded as a gratuity, it was clearly beyond the power of the board. If we look at it as a salary for a new officer, viz., acting captain, we are met by the absence of any provision of law for either the creation or pay of such office. Whatever the duties performed by appellant he remained a sergeant until his promotion on July 1st. Leonard v. Fagen, ubi supra. Nor was it an increase in the salary of sergeant. Appellant claims that it was not, and we agree with him. If it were so claimed, then as we construe the acts of 1889 (P. L. p. 402) and 1905 (P. L. p. 132) adopted by Jersey City, especially the latter, an increase in pay in sergeants should apply to all sergeants, and not merely to one who had been singled out for such increase. The judgment of the district court respect-be such that the court in its discretion should ing the claim of $216.64 was correct, and will be affirmed, with costs. An affidavit on which an attachment is to be based must, in the absence of statutory provision to the contrary, state the Christian name order the amendment to be made. It is this action of the district court that is attacked by the present writ. The status of an auditor in an attachment out of a superior court to attack the validity of an attachment in a district court may well be questioned. By the statute the circuit court attachment is a supersedeas to a district court attachment, and the sheriff takes possession as against the district court constable or sergeant at arms. District of the defendant debtor, an initial being insuffi-Court Act June 14, 1898 (P. L. p. 587, § 77). cient; and, if the initial only be given in such affidavit, it cannot afterwards be amended. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 258, 332; Dec. Dig. §§ 101, 122.*] (Syllabus by the Court.) By the same statute the district court attachment retains its priority, and the plaintiff's claim, if adjudged valid, is settled by the circuit court auditor as a prior claim. We find nothing in the attachment act requiring or authorizing an auditor to attack other attachments for illegality, but his sta Certiorari to District Court of Passaic. Certiorari by Benjamin E. McGrew, Auditor, against Herman Steiner and L. Wil-tus for that purpose is not brought into quesliams to the district court. Reversed. Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. George P. Rust, for prosecutor. James A. Sullivan, for defendants. PARKER, J. This writ brings up certain proceedings in attachment had before the district court of the city of Passaic, in which the defendant Steiner was plaintiff and the defendant Williams defendant. The affidavit for attachment in the district court alleged that "L. Williams" was indebted to the plaintiff, and that the said L. Williams absconded from his creditors. The writ of attachment as issued gave merely the name tion here. He did as a matter of fact, intervene in the district court and petitioned that the writ and proceedings be quashed. He was heard in that court. If his application had been simply denied, and the case were before us in that form, his status as an intervener would be open to examination; but the district court did not content itself with denying his application, but went further and undertook, as against him, to amend the affidavit and writ and other proceedings, and it is these amendments that he now attacks by certiorari. We think that he has a status for that purpose. Coming now to the merits of the case, we fail to see by what authority the district court undertook to amend the affidavit and the writ, and especially the |