text:
    Sophie Busath v. Nanny Prival et al.
    [Decided July 15th, 1915.]
    1. Under the Attachment act (1 Comp. Stat. 1910 pp. 137, 138 §§ 7, 8), providing that only the property and estate of defendant in attachment at the issuance of the writ is bound, and that the estate of other persons acquired therein previous to the attachment cannot he affected thereby, the previous equitable or legal interests of third parties in the lands attached are protected.
    2. A judgment in attachment, obtained after the filing of a bill against the debtor for specific performance of an agreement to convey, and notice of the debtor’s conveyance and complainant’s rights thereunder, did not protect the judgment creditor under the recording act.
    3. Under P. L. 1892 p. 292, supplementing “Married Woman’s” act (3 Comp. Stat. 1910 p. 3231 ¶ 8f), providing that a married woman may execute and deliver any conveyance of her real estate without her husband joining therein, provided that such deed is given in execution of a written contract by her to which the husband was a party, or to which he has assented in writing, and that such contract shall be acknowledged as in case of a conveyance of land by a -married woman, and that such contract and assent shall be recorded before or at the recording of any such conveyance, the wife’s conveyance in execution of the written contract for the exchange of lands between the purchaser and the husband, in which the husband did not join, made before the contract had been recorded, was not evidence of the written contract, or an expression of its terms, and as written evidence of the contract for sale or exchange was incomplete and disclosed only part of the terms, so that it could not be considered as the required contract of sale which could be specifically enforced against the will of the wife.

      4. Where the vendee or purchaser in a contract with the vendor’s husband for the exchange of properties has fulfilled his contract, and the vendor refuses to convey, the purchaser may have the vendor’s estate in the land charged with the payment of the purchase-money, or with the value of the property delivered as a consideration, and also with the other moneys equitably due by reason of the purchaser’s execution of the contract and taking possession of the land.
    On bill, amended bill, answer, replication, stipulation and proofs.
    Complainant, Mrs. Busath, was the owner of lands in the city of New York, and the defendant Mrs. Prival of two lots of land in Englewood, New Jersey. An oral agreement for exchange of the lands was made between complainant and Mrs. Prival and her husband, Louis, and the terms of exchange agreed on. A written agreement, dated February 21st, 1912, expressing these terms was afterwards made between complainant and Louis Prival, the husband, by the terms of which the husband was to convey to complainant the New Jersey land, and complainant to convey to the husband the New York land. All the lands were to be conveyed subject to existing mortgages thereon, and a third person, Mrs. ICrisch, the mother of Mr. Prival, was a party to the- written contract and, together with Prival, agreed to procure an extension for one year of a second mortgage for $1,500 on the Englewood property, or to advance $1,000 toward reducing it on certain conditions as to repayment of the amount advanced. On March 15th, 1912, conveyances for the purpose of carrying out the agreement were made, the complainant conveying her New York lands to Louis Prival, this being by consent and direction of his wife, and Mrs. Prival conveying to complainant by two deeds (one for each lot) the Englewood lots. The husband of Mrs. Prival did not join in the execution of either of these deeds. All of the parties were residents of New York and all of the contracts were made there and all the deeds were delivered there. Under the laws of New York the separate deed of the wife for lands located there is valid. The deeds for the New Jersey lands were acknowledged before a proper officer by Mrs. Prival to have been signed, sealed and delivered as her voluntary acts and deeds, freely, without threats or compulsion of her husband, and were recorded on April 6th, 1912. The contract of exchange had not been recorded. On July 31st, 1912, defendant II. B. Claflin Company issued a writ of attachment against Mrs. Prival as a non-resident debtor, and on August 7th, 1912, the New Jersey lands were attached under the writ. On March 10th, 1913, the written contract of exchange, which had been duly acknowledged, was recorded, and on April 13th, 1913, this bill for specific performance (amended at the hearing to set up the prior oral agreement) was filed against Mr. and Mrs. Prival and the attaching creditors. Decree pro confesso has gone against the Priváis as non-resident defendants brought in by publication, and I-I. B. Claflin Company answers, claiming the invalidity of the deed executed by Mrs. Prival and denying right of complainant to specific performance. After answer to the bill and on July 24th, 1913, order for judgment by default for $.249.84, besides costs, was entered in the attachment suit on the auditor’s report.
    Upon the execution and delivery of the deeds the Priváis took possession of the New York property and received the rents, and complainant took possession of the New Jersey property and has since received the rents.
    On the exchange of properties a purchase mortgage upon the New York lands conveyed by complainant to Louis Prival was given to complainant by Louis Prival and wife for $6,500, the estimated difference in values fixed by the contract of exchange. This mortgage was payable in installments upon which default was made, as also default in subsequently paying taxes and assessments upon which foreclosure proceedings were commenced, and, subsequently, on August 7th, 1912, these were adjusted by the conveyance of the mortgaged premises to complainant upon her payment of $100. She had previously paid taxes and assessments to protect her mortgage. Subsequently, on being requested to join in a new conveyance of the New Jersey lands to remedy the defect in the former deed, Mr. and Mrs. Prival, through their attorney, refused to do so, except upon payment of $1,000 or $1,200, and have not made any answer to subsequent requests by letter to execute a joint deed.

      Mr. Arthur H. Bissell, for the complainant.

      Mr. William E. Ellis, for the defendant H. B. Claflin Company.
   Emery, V. C.

(after statement). In this case I reach these conclusions:

First. The rights of the defendant H. B. Claflin Company in the lands in question at the time of filing the bill were those of attaching creditors only, and under the Attachment act (1 Comp. Stat. p. 137, "Attachment,” §§ 7, 8) only the property and estate of the defendant in attachment on the lands at the issuing of the writ is bound, and the estate of other persons acquired therein previous to the attachment cannot be affected by the attachment. Campion v. Kille (Court of Errors and Appeals, 1863), 15 N. J. Eq. 476, 478. The previous equitable interest of third parties in the lands attached are protected as well as their legal interests. Canda v. Powers (Chancellor Runyon, 1884), 38 N. J. Eq 412, 413. The decree in this case was reversed on another point, but this rule under the Attachment law was not questioned. The judgment in attachment having been obtained after filing the bill and notice of the conveyance to complainant by Mrs. Prival, and complainant’s rights arising thereunder, defendant as judgment creditor is not protected under the recording acts. Canda v. Powers, supra, 418; Lanahan v. Lawton (Vice-Chancellor Pitney, 1892), 50 N. J. Eq. 276, 281.

Second. Specific performance of a written contract on the part of Mrs. Prival to convey based on her execution of the defective deed, as evidencing the written contract, cannot be granted under the statute. P. L. 1892 p. 292, a supplement to the “Married Woman’s” act, Comp. Stat. p. 3231 8f:

“Conveyance of real property by married woman in execution of written contract to which husband was party, &c.
“Sec. 1. That hereafter any married woman above the age of twenty-one years may execute and deliver any conveyance of her real estate without her husband joining therein, and such conveyance when duly acknowledged, and such acknowledgment certified according to law, shall be good and effectual to convey the lands, tenements or hereditaments thereby intended to be conveyed; provided, that such deed is given in execution of a written contract made by such married woman, to which the husband was or shall be a party, or to which he has given or shall give his assent in writing, or to the terms, conditions and stipulations of which he in writing has bound or made subject or shall bind and make subject his right, title or interest in said real estate; and provided, further, that such contract shall have been or shall be acknowledged, as in case of a conveyance of land by a married woman, and such assent or other writing signed by such husband shall have been or shall be acknowledged or proved, as in case of a conveyance of land, and such contract and assent, or other writing, shall have been or shall be recorded before or at the time of the recording of any such conveyance.”

This statute by its terms contemplates a prior written contract executed and duly acknowledged by the wife, and the subsequent voluntary execution of a deed in pursuance of the written contract. It validates such subsequent separate deed of the wife. The defective deed cannot itself be taken as the prior written contract intended by the statute, and another deed, based on this as the previous separate contract of the wife, be required to lie executed against her will by a decree for specific performance. And upon the facts proved in this case, it cannot be held that in fact the defective deed as executed was the evidence of the written contract for conveyance or as expressing the terms of the contract. The lands were not conveyed upon the consideration mentioned in this deed, nor do any of the other material parts of the contract, which was one for exchange, appear in this deed. As written'evidence of the contract for sale, it is incomplete and discloses only part of the terms, and for this additional reason cannot be considered as the contract of sale now to be specifically enforced against the will of the wife.

Third. The wife refusing to convey, the equity of the complainant as against her stands as that of a vendee or purchaser on the exchange of properties, who has on her part fulfilled the contract, and by reason thereof and of the wife’s refusal has equities for compensation. This equity is to have the estate of Mrs. Prival in the lands charged with the payment of the purchase-money (Pentz v. Simonson (Chancellor Green, 1861), 13 N. J. Eq. 232, 236; Phelps v. Morrison (Court of Errors and Appeals, 1874), 25 N. J. Eq. 538, 547), or with the value of the property delivered as consideration (Pierson v. Lum (Vice-Chancellor Green, 1874), 25 N. J. Eq. 390); and also with other moneys equitably due, by reason of complainant’s execution of the contract on her part and taking possession of the land. This aspect of the case was not presented at the hearing, and on the nature and the extent of these charges, I will hear counsel. The interest of Mrs. Prival in the lands will be sold to pay any charges directed, which will be prior to the attaching creditors’ lien, and if sale is directed, I will hear counsel as to selling any interest the husband may have in the lands, or directing conveyance thereof by him to the purchaser.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Compagnie Universelle de Telegraphie et de Telephonie Sans Fil v. United States Service Corporation et al.
    [Decided August 2d, 1915.]
    1. Contracts entered into before the beginning of hostilities continue in force during the war, and may' be sued upon if to the disadvantage of the alien enemy defendant, who may always defend and who may in exceptional cases sue.

      2. A French company and a German company entered into a contract before the beginning of hostilities between their respective governments, whereby the German company conveyed certain wireless telegraph patent rights, undertook to construct a wifeless station in New Jersey, and, on failure to meet the prescribed conditions as to its operation, agreed to repurchase it. After the beginning of hostilities, a law and ordinance of the French republic forbade French citizens from performing existing contracts for the benefit of alien enemies, a statute of the German empire forbade all German subjects from carrying on any business with French citizens, and a special military decree forbade the German company to render any assistance to the French company or to initiate any action against it. The German penal code, paragraph 89, enacts that a German doing anything to assist a hostile power shall be punished for high treason. Tlje New Jersey statutes give aliens the same rights to acquire, hold, and dispose of lands as citizens, and Chancery act (Comp. Siat. 1910 p. J$0 § 45) declares that a decree for a conveyance, &c., not complied with by the party against whom it passes, shall be as effective as if executed conformably to the decree, notwithstanding any disability of such party. — Held, on a bill by the French company for specific performance of the contract to repurchase, that a plea that it would be unlawful for the parties to perform a decree was not good, that neither the French ordinance nor the German statute or decree expressly forbade the institution of a suit or its defence, that the ground of aid to an alien enemy failed, that comity required that a neutral court be open to litigation by either party to the contract, and that if compliance with the decree was refused the Chancery act would enforce it.

      Mr. John R. Hardin and Mr. George Zabriskie, for the complainant.

      Mr. Robert H. McCarter and Mr. Samuel Untermyer, for the defendants.
   Stevens, V. C.

The bill is filed to compel the specific performance of a contract to convey (inter alia) land at Tuckerton, New Jersey, on which has been erected a radio-telegraph station.

The contract, which bears date September 30th, 1912, is made between Retired Rear Admiral Hugo Emsmann and Professor Doctor Engineer Rudolph Goldschmidt, acting as directors of tire Hoch Frequenz-Machinen Aktiengesellschaft für Drahtlose Telegraphie, of Berlin, Germany, and M. Jean Bourdelongue and M. Ernest Sins, acting for Compagnie Hniverselle de Telegraphie et de Telephonie Sans Fil, of Paris, France. It was entered into at Paris, and, speaking generally, it was agreed between the Prussian company, under the abbreviated name of “Homag,” and the French company, under the abbreviated designation “C. IT. T. T.,” that the German company conveys (in the present tense) certain patents of invention taken out or applied for in the United States, England, Austria) Belgium, Canada, Denmark, France, Italy, Russia, Sweden, Spain and Brazil, for the production of high frequency currents specially intended for wireless telegraphy and, under reservations, certain patents taken out or applied for in Germany.

Also,

“the benefit of the studies, researches, proceedings, agreements, acquisitions and work (acquisitions et travaux) done by the Homag, under its name or under any name whatever, with a view to the promotion or exploitation of a radio telegraphic station in the United States of America.”

Also certain other rights not very material to the present inquiry.

Article 2 provides “that the sale takes place in consideration of 2,500,000 francs,” which has been actually paid, and fifty thousand founders’ shares of the French company which have been duly delivered; and article 3 provides that the French company “shall have the full right and enjoyment of the property and rights sold from this day on.”

The article which specially concerns the present inquiry is article 7. It provides for the installation of a radio-telegraph station in the United States. It reads in part:

“It is expressly agreed that the work of construction and installation of said station shall be carried on and directed by the ‘Homag,’ acting in the name and for the account of the ‘C. U. T. T.’ under its supervision and control. * * * It is well understood, however, that the ‘Homag’ cannot obligate the ‘C. U. T. T.’ for a total of the expenditures made or incurred relative to this station to a sum greater than 2,000,000 francs except by agreement with the ‘C. U. T. T.’ The ‘C. U. T. T.’ shall have the right at all times to itself take over the direction of the work.”

There is another clause providing that if in nine months after the completion of the installation

“communication between the United States of America and Europe by the transmission of three thousand words in twenty-four consecutive hours shall not have been realized, both parties being present, the ‘C. U. T. T.’ shall have the' right to require that the ‘Homag’ shall re-purchase this radio telegraphic station from it at the cost price.”

The bill, after setting forth the contract and the payment of the consideration, viz., 2,500,000 francs and fifty thousand founders’ shares in the French company, alleges that since its execution the patents which it was recited in the contract had been applied for, and certain other patents, in the United States, have been issued to the defendant Goldschmidt, in tile United States, and arc being used in the Tuckerton station; and that the work of construction at Tuckerton has been completed and that the defendant Meyer has been put in possession.

The absent defendants were brought in by order of publication. They have all appeared. The United States Service Corporation and Meyer have filed disclaimers, and the defendants Homag and Goldschmit have filed a plea. The case comes up on the sufficiency of this plea.

It states, first, that the Tuckerton station communicates, and can communicate, only with the Prussian station at Eilwese, and that to give the French company present possession would be to close it and prevent Germany, among other things, from communicating directly with the United States. But this objection seems to be met by the further statement in the plea that the navy department of the United States, pursuant to an act of congress, entitled “An act to regulate radio communication,” on September 9th, 1914, assumed exclusive control of the station, which is being operated under the supervision of a naval officer in charge thereof, and that all tolls for messages are being collected by the government of the United States/which holds the same in trust.

Assuming (without deciding) that this court would not, during the continuance of the war, compel a specific performance of the agreement because its effect would be to cut off direct communication with the German empire, it is obvious that in view of the control assumed by the United States government no such result would follow. I, therefore, dismiss this part of the plea from further consideration.

The substance of the remainder of the plea is that this court ought not now to entertain the suit because it would be unlawful, according to the laws of their respective countries, for the subjects or citizens of Germany or France to perform the decree if made.

On this, there is this observation: It is one thing to decline jurisdiction and turn the parties out of court altogether, and quite another to stay the trial, if a fair trial cannot be had, because of the absence of material witnesses or for other reasons.

' The question now to be considered is whether the court should dismiss the bill.

At the outset of the discussion it is to be remembered that the suit has been instituted in the court of a neutral and not in the court of a belligerent. Seasons that would suffice to suspend the right of action in the latter may not be applicable in the former.

The cases cited have been those arising in the courts of one of the belligerents. They are numerous, and their result, as far as they bear upon the present controversy, has been thus summed up by Judge Veeder in the very recent case of Watts, Watts & Co. v. Uneone Austriciaca di Navigazione, 224 Fed. Rep. 188, in the United States district court. He says: “The law of nations, as judicially declared, prohibits all intercourse between citizens of the belligerents which is inconsistent with the state of war between their countries. No transaction injurious to their own government may be entered into or continued by them. Ordinary commercial intercourse is therefore incompatible with a state of war, since every act and contract which tends to increase the enemies’ resources is absolutely interdicted, and this includes every kind of trading or commercial dealing, whether by transmission of money or goods, or order for the delivery of either, directly or indirectly, or by contracts in any form looking to or involving such transmission. Every such contract made during war is illegal and void. Since, however, aid to the. enemy is the touchstone of illegality, discrimination is permitted in the case of contracts made before the outbreak of war. Further performance which enures to the aid of or involves any dealing with the enemy is illegal.. If from its character the contract is incapable of suspension it is dissolved. But where such interruption of performance does not go to the root of the transaction, the contract is merely suspended during the war. The alien enemy is not dviliter morkuus; he is merely in a state of suspended animation. When the war ends the mutual obligations of performance and right of action revive. Where, therefore, such a contract has been entered into with an alien enemy before the outbreak of war and has been performed on his side, the war merely suspends his remedy; in other words, he cannot sue upon it during the existence of hostilities. If, on the other hand, performance of the contract is on the side of the other party, he can enforce the contract (particularly such as require for performance payment of money only) in the courts of his own country during the continuance of war, provided, of course, a cause of action has accrued. The reason why the rule debarring’ action on the part of an alien enemy plaintiff can have no application where the parties are reversed is plain. The rule is based upon the obvious ground that it is contrary to public policy for the courts of a belligerent country to render any assistance to an alien enemy to enforce rights, which, but for the war, he would be entitled to enforce to his own advantage and to the detriment of his opponent. It is apparent, therefore, that to hold that a subject’s right of action against an alien enemy in his own country is suspended, would be to defeat the very object of the suspensory rule and to turn a disability into a relief.” The following, among others, are leading cases on the subject: Mutual Benefit Life Insurance Co. v. Hillyard, 37 N. J. Law 444; Kershaw v. Kelsey, 100 Mass. 561; Esposito v. Bowden, 7 El. & Bl. 763; Jansen v. Driefontein Consolidated Mines (1902), A. C. 484; Briggs v. United States, 143 U. S. 346; Williams v. Paine, 169 U. S. 55.

From the opinion of Judge Veeder it is apparent that in the case of executed contracts — that is, contracts, like the one under consideration, performed on one side — suspension of the remedy, even in a belligerent court, is not absolute. Such contracts will be enforced where it is to the advantage of the belligerent to enforce them. But this is by no means all. It was held In re Boussmaker, 13 Ves. 71, that in cases of bankruptcy, an alien enemy’s claim against the bankrupt can be proved, but that the dividend will be reserved until the close of the war. In McVeigh v. United Stales, 11 Wall. 267, it was held that an alien enemy can defend a suit brought against him. As far back as the time of William III., it was decided that if an alien enemy came into the kingdom, sub salvo conduciu, he might maintain an action; for, said the court, “suing is .but 'a consequential right of protection, and therefore an alien enemy that is here in peace, under protection, may sue a bond.” Trotter, in his work on “Contract During War,” page 951, says:

“The general rule is that an action cannot, during war, be brought by or on behalf, of an alien enemy unless by virtue of a statute, or by an order in council, or a proclamation, or a license from the crown, or unless he comes into the British dominions under a flag of truce, a cartel, a pass or some other public authority that puts him in the King’s peace pro hao vice.”

In Casseres v. Bell, 8 T. R. 166, Lord Kenyon said that the plea of alien enemy was an odious one, and in Kershaw v. Kelsey, 100 Mass. 561, where it was held that payment to the agent of an alien enemy was good, Mr. Justice Gray said: “At this age of the world when all the tendencies of the law of nations arc to exempt individuals and private contracts from injury or restraints in consequence of war between their governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a state of war.”

These citations demonstrate that even in the view of the belligerents themselves, contracts entered into before the beginning of hostilities continue in force during the war; that they may be sued upon, if to the disadvantage of the alien enemy defendant; that the alien enemy may always defend and that he may, in exceptional cases, sue. Is it possible that the courts of a neutral would refuse jurisdiction where enemy courts would entertain it? It is said, in the opinion of Judge Veedor (supra), that there is no authority bearing upon the question of the standing of belligerents in the court of a neutral where those belligerents are forbidden by the laws of their respective companies to. have dealings with each other. This may have arisen from the fact that no suit by the subject of one belligerent nation domitiled abroad has ever been brought against the subject of another in the court of a neutral — a supposition somewhat improbable— or from the fact that the question has not been raised, because it has been the professional opinion that inasmuch as the laws of foreign countries have no extra-territorial force, the courts of neutrals are as completely open to suitors whose governments are at war with each other as to other litigants. If the only ground upon which the courts of a belligerent are shut against its alien enemy, is possible advantage that might accrue to him, this ground fails entirely when the courts of a neutral are appealed to. The neutral nation is the friend of both belligerents and comity requires that the doors of its courts be open, if their subjects have wrongs to be righted. On what ground, then, are the}', in the case in hand, to be closed? Certainly not on the plea of alien enemy.

The .present controversy concerns title to land in New Jersey. This is a subject over which the New Jersey courts have almost exclusive control. In no other jurisdiction can complete relief be afforded — relief that will operate on the land itself and not merely on the person of the title holder. Defendants’ counsel rely upon a class of cases in which it is held that the court, in the exercise of a sound discretion, may refuse to entertain jurisdiction of a controversy between aliens. These are cases of tort occurring on the high seas or elsewhere outside of tire jurisdiction, or cases of contract made and to be performed abroad. If the court be of opinion that justice can better be administered in the courts of the domicile of the suitors, it requires them to go there. They are not authorities for the proposition that the court may refuse to try title to land lying within its jurisdiction if the suitors be aliens. The laws governing real estate are best understood here. The subject-matter of the controversy is here and the transfer of the title takes effect here. Hnder our statute aliens have the same right.to acquire, hold and dispose of land as citizens have, and-to give effect to this right they must have the same remedies.

Now, what are the grounds alleged in the plea upon which this court is asked to refuse to exercise its jurisdiction in favor of complainant ? It first sets out verbatim section 2 of the law of 5th August, 1914, of the Republic of Prance. This section reads as follows:

“During the mobilization and until the end of the military operations, the government is authorized to promulgate in the Council of Ministers any such ordinances as will be required in order to make provision to facilitate the performance of civil or commercial contracts, or to make them, temporarily, inoperative. * * *”

The council of ministers promulgated an ordinance as follows:

“All business and other transactions with subjects of the German and Austro-Hungarian empires or persons residing therein are forbidden. Any agreement made or contract executed in French territory or French protectorate territory by any person, or anywhere by French subjects or subjects of a French protectorate, with subjects of the German and Austro-Hungarian empires or persons residing therein is void.”
“During the same period, the performance of any pecuniary or other obligation for the benefit of a subject of the German or Austro-Hungarian empires or any person resident therein, from any contract made in French territory, by any person or anywhere by French subjects on or before the above dates, is forbidden and void.”

This ordinance does no more than codify the law oil the subject as it is stated to be in Judge Veeder’s opinion. The first paragraph has, in express words, reference only to transactions and agreements had or made subsequent to August 4th, 1914. The second paragraph forbids performance of past obligations for the benefit of subjects of the German or Austro-Hungarian empires. Neither section forbids the bringing of a suit for the benefit of a French subject in a French court. It would be strange, indeed, if it should be construed as forbidding a French subject to bring a suit beneficial to himself in the courts of a neutral; especially in view of the general principle of law that denies it extra-territorial force. “Extra territorium jus dicenti impune non pareiur” is, says Story, the doctrine of the Digest, and it is equally as true in relation to nations as the Roman law held it to be in relation to magistrates. Conflict of Laws § 7.

The plea then goes on to refer to, without quoting, a statute of the Empire of Germany, enacted September 30th, 1914, by which, it is averred,

‘‘all German subjects were forbidden to make any payments, directly or indirectly, in money, drafts, checks, transfer of credits or in any other manner, or to transfer any property to or to carry on any dealings or transactions with residents in or subjects or citizens of (inter alios) France, the French colonies and the countries of the French protectorate.”

It is obvious that there is nothing here which forbids a German subject from defending a suit brought against him in the court of a neutral. Indeed, taken in connection with paragraph 89 of the penal code, which the pleader next quotes in extenso, it would rather seem the duty of the German subject to defend; for the enactment is that “a German who during a war declared against the German empire does anything to assist a hostile power * * * will be punished because'of high treason * * To allow such a suit as the present to go by default— if there be a just defence to it — would certainly come within the spirit, if not the letter, of the enactment.

But it seems from the plea that the military governor, whose jurisdiction includes Berlin, the place of domicile of the German company, has issued to that company, specially, a decree that

“during the state of war, you [the German company] are hereafter prohibited to make any payment or render any assistance of any kind at all to * * * [the French company] or their representatives as well as to initiate any move or action vis-a-vis of the C. U. T. T. [the French company] or their representatives.”

This decree is no doubt operative upon the German company within the limits of the military governor’s jurisdiction, but, like any foreign law (if it have the force of law), cannot operate here — cannot prevent this court from vindicating and protecting any right to New Jersey land that may be justly insisted upon. But, like the above-mentioned German statute, it does not, in terms or otherwise, forbid the German company from making a defence. The company is prohibited from making payment to the French company; from assisting it; from “initiating” any move against it. By merely defending itself against a French claim, it will not do any of these forbidden things.

But, it is argued, the court may possibly decree that the German company transfer the land to the French, and then if it obeys, it will render itself liable to the prescribed punishment. It seems to me there are two answers to this contention. In the first place, bearing in mind the quotation from the Digest given above, which no doubt expresses the law of every civilized country, it can hardly be assumed that it was the purpose of the German legislator to attempt to give extra-territorial force to its enactments or decrees respecting lands in foreign countries, or to put its subjects in the position of refusing to obey orders or decrees respecting those lands made by the courts of the country -where those lands lie. But, assuming that obedience to or active compliance with such an order would be held criminal in Germany, aDd would subject the company to punishment, it could avoid punishment by defending, and then, if unsuccessful, by failing or refusing to comply with the decree. In this situation our statute would operate of its own inherent force.

Section 45 of the Chancery act (Comp. Stat. p. 426) provides as follows:

“Where a decree of the court of chancery shall be made for a conveyance, release or acquittance of lands or any interest therein, and the party against whom the said decree shall pass, shall not comply therewith by the time appointed, then such decree shall be considered and taken, in all courts of law and equity, to have the same operation and effect, and be available as if the conveyance, release, or acquittance had been executed conformably to such decree, and this, notwithstanding any disability of such party by infancy, lunacy, coverture or otherwise.”

Judge Veeder dismissed the suit brought by Watts & Co. He seems to have treated it as one in which exercise of jurisdiction was discretionary, the parties, the contract and the attached vessel being all foreign. He seems to have thought that- the pendency of the war and the laws and ordinances promulgated by the belligerents were good reasons for declining jurisdiction. Whether they were or not — and they do not seem to be very obviously so — the case is no authority for the proposition that this court should refuse to entertain a question of title to land in New Jersey. The very ground upon which it is held that the jurisdiction is discretionary, viz., that there is a more appropriate tribunal elsewhere, here fails, or rather is a reason for holding it. There is, as I have said, no tribunal as capable of doing complete justice in a case situate like this, as the New Jersey tribunal, and at this time there is no other tribunal anywhere clothed with power to do justice to the extent of its ability by acting upon the person of the defendants that is open to the parties. Besides, I have never supposed that the jurisdiction of the New Jersey courts over land stood upon the same footing with that exercisable over torts committed by aliens on the high seas, in foreign vessels;

To sum up. In times of peace, the courts take jurisdiction, as a matter of course, for the benefit of denizens and aliens alike. If foreign nations are at war among themselves, this nation does not cease to be friendly. Its courts remain open to their subjects. Certainty, a French citizen may still sue an American citizen. Why should ho not sue a German subject? No law of France prohibits it. On the contrary, he may sue even in France, if to his advantage and not to the advantage of his enemy. Why may he not sue in this court? If he may not, it can only be on the ground that this court will give soma effect to German legislation enacted as a war measure — as a means of crippling its enemy. As I have already shown, there is nothing in this legislation, disclosed, at least, by the plea, that prohibits the German subject from defending against a French claim. Brit sirppose there were. If this court gave effect to it, it would, in a measirre, be enforcing German law, which, on well-settled principles, can have no extra-territorial operation, to the detriment of the French citizen asking to be heard. This, it seems to me, would be an unneutral act. 1, therefore, think that the plea should be overruled, and that the defendants who have not disclaimed should answer.


author: Leaming, V. C.

text:
    Charles J. Collins v. Martin V. B. Scull et al.
    [Submitted April 21st, 1935.
    Determined May 12th, 1915.]
    A bill in equity will not lie to restrain six de facto councilmen of a city from contracting' debts and ordering the payment of bills on behalf of such city, on the ground that three of such councilmen had not been lawfully elected, while four were necessary to constitute a quorum of the common council, since the ascertainment of titles to public office belongs to courts of law.
    On bill for injunction. On hearing at return of order to show-cause.

      Mr. Charles C. Babcock and Mr. Clarence L. Cole, for the complainant.

      Mr. Albert C. Abbott and Messrs. Bourgeois & Coulomb, for the defendants.
   Leaming, V. C.

I think it clear that this court is without power to grant the relief sought by the present bill.

The bill asserts that four councilmen are necessary to constitute a quorum of the common council of the city of Somers Point; that six men are acting as councilmen of that city and transacting business as its common council; that three of these six men were not lawfully elected and, in consequence, the proceedings of that body are sanctioned at most by only three lawful votes. The bill seeks to restrain these six acting councilmen from contracting debts on behalf of that city and from ordering payment of bills against it.

The bill does not seek relief against the expenditure of money for any specific unlawful purpose; but seeks to prevent expenditures for any purpose upon the theory that three of the six acting councilmen were not legally elected, and that any action taken by the body is necessarily void for the reason that no quorum of lawfully elected members can exist.

This court is thus asked to inquire into and ascertain whether certain acting members of an acting municipal legislative body have been lawfully elected, and based upon the ascertainment of their unlawful election to issue a general preventive decree against all future monetary legislation by the de facto body.

This is clearly beyond the jurisdiction of this court; the ascertainment of title to office belongs to the courts of law. See 2 High Inj. §§ 1312, 1315. Any decisions in this or other jurisdictions sustaining injunctions against municipal action for the protection of private property rights or based upon proceedings of a municipality ultra vires its powers or involving an incidental inquiry into title to office for the purpose of determining other issues properly presented, are clearly distinguishable from the present bill which seeks to prevent all future municipal action involving the expenditure of money upon the single ground of illegal election or organization of the de facto legislative body of the municipality.

I will advise an order denying the relief prayed.


text:
    Atlantic and Suburban Railway Company, a corporation, v. The Board of Chosen Freeholders of the County of Atlantic.
    [Submitted April 10th, 1915.
    Determined June 16th, 1915.]
    1. A trolley company operating a railway on a highway entered into an agreement with the freeholders of the county under which the board agreed to contract for the paving of the highway, and the trolley company agreed to pay one-third of the cost. It was provided that the grade established by the county engineer and state road commissioner be accepted by all parties as the grade to which they would conform. The trolley company reconstructed its track to conform to the grade so established, but the paving did not conform to such grade, being above the track in some places,, and in others not sloping from the track, thereby causing injury to the track. — Held, that, while the trolley company was entitled to an honest execution of the paving contract between the county and the contractor and the construction of a pavement in accordance therewith, its remedy was not by a mandatory decree to compel the relaying of the pavement or by an injunction against an action for its share of the cost until the pavement should be relaid.
    2. The certificates of the engineer under the contract between the county and its contractor were not conclusive on the trolley company that the pavement as constructed was at the established grade.
    On final hearing. On bill for specific performance and for injunction.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Mr. Enoch A. Higbee, for the defendant.
   Leaming, V. C.

On June 21st, 1909, complainant, a trolley company, was engaged in operating its line of electric railway on a highway, in Atlantic county, known as the Shore Road, under proper authority for that purpose. On that date it entered into an agreement with the board of freeholders of Atlantic county, defendants herein, wherein defendant agreed to enter into a contract with a contractor for the paving of the entire Shore road with a macadam pavement with an asphaltum or amiesite binder, or some similar material of like character, and complainant agreed to pay defendant one-third of the total cost. No further stipulation appears in the contract touching the details or characteristics of the pavement which defendant was to cause to be laid. But by a clause of the contract it was provided that the. grade which should be established by the county engineer and state road commissioner, and set forth in the contract for letting of the road, should be accepted by all the parties as being the grade to which all parties to the agreement would conform, and another clause provided that the paving should be done under the supervision and the sole direction of defendant under specifications to be approved by the commissioner of public roads of New Jersey in accordance with the Road act of March 27th, 1905, and that the said work should be superintended and under the direction of the inspector or supervisor appointed by the county and state road commissioner. Whether this latter clause bestowed the 'supervision of the work on the state or on the county officials is not entirely clear; but it clearly removed all right of supervision from the trolley company.

At the completion of the pavement an action at law was brought by defendant against complainant to recover the one-third of the cost of the pavement. The present bill is filed by complainant to enjoin the further prosecution of the action at law and to compel defendant to relay such parts of the pavement as is not constructed in conformity to the contract.

It seems clear that this contract, though meagre in its terms, imposed upon defendant the duty to supply a pavement of the general nature described and at the grade thereafter established, and entitled complainant to the enjoyment of such a pavement at the grade so established.

It is clear from- the evidence that a considerable of the pavement as completed was not at the established grade; it is also reasonably clear that complainant' is injured thereby. At many places where complainant’s tracks are at grade the surface level-of the finished pavement is above the level of the tracks. It is claimed by complainant that by reason of the trough or‘gutter thus formed snow accumulates on the tracks to such an extent as to interfere with the operation of its cars. The evidence discloses that on one occasion this occurred to an extent which prevented operation of the ears. It is also claimed that the elevation of the surface of the pavement above the level of the tracks occasions a raveling or breakage of the amiesite adjacent to the tracks and is operative to expose the foundations of the tracks to increased seepage of water to an injurious extent. It is also claimed by complainant that at many points the finished pavement surface fails to conform to the profile or grade slope from the tracks toward the curbs of the roadway, and jhat the pavement surface in fact slopes toward the tracks and causes water to run to and on instead of away from the tracks; this, it is claimed, further exposes tire foundations of the tracks to injury from water, and this injury is claimed to be aggravated by the improper fraying of the amiesite adjacent to the tracks.

It is impossible to say that these several claims on the part of complainant are without some merit. The trolley road of complainant was reconstructed, by pre-arrangement, in advance of the pavement construction. The grade of the trolley road was established with reference to tacks placed in poles near the sides of the highway by the agency of defendant for that purpose, and the tracks were laid in reasonable conformity to that grade. The paving was laid with reference to the tracks and upon the assumption that the tracks were at grade and with a purpose of conforming the finished surface of the paving adjacent to the tracks to the level of the tracks, and sloping the surface of the paving from the tracks to the curbs. But, through inaccuracy of construction, the surface of tire finished pavement in many places did not conform to the level of the tracks, and in many places did not slope away from the tracks as it should have done. That some injury from this inaccurate construction flows to complainant I am unable to doubt.

But I have been unable to reach the conclusion that complainant’s appropriate remedy is either by injunction against the trial of the pending actions at law which have been brought for recovery of the share of cost which complainant has agreed to pay or by a mandatory decree to compel defendant to relay the pavement.

The former remedy would be operative to deny defendant the money they seek until the pavement should be relaid in accordance with the contract; the latter remedy, either alone or in connection with the former remedy, would be enforceable only by proceedings for contempt; and the two remedies alike involve the ascertainment by this court whether the pavement, if relaid, has been made to meet the requirements of the contract. This latter duty this court cannot appropriately assume in this case; it involves in its ultimate determination, not only an ascertainment by this court of the various parts of the work which require reconstruction or alteration, but also involves the continuous supervision of the court over every detail of all reconstruction work and includes in all matters and at all times the exercise of a directing judgment of the court in features of road construction work both practical and technical.

As already pointed out, the contract between tire trolley company and the county only provides that the county will cause the pavement to be laid and will establish a grade to which all parties must conform, and that the trolley company shall recompense the county by paying to the county one-third of the total cost of the paving work. The trolley company is not a party to the contract between the county and the road construction contractor; but as the trolley company under its contract with the county is to pay one-third of the cost of construction, that contract must be understood to contemplate not only the execution of an honest paving contract between the county and its contractor, but also the construction of a pavement in accordance with that contract; it necessarily follows that when the trolley company is called upon to pay its one-third of the costs of construction under the latter contract, to which it was not a direct party, it is privileged to inquire whether the work called for by that contract, for which the payment is desired, has been done, and that inquiry necessarily includes an investigation touching every essential detail of the work with reference to that contract.

Certificates of the engineer under the contract between the county and its contractor may be given their appropriate force in matters within the field of conclusiveness of such certificates; but such certificates cannot, as against the trolley company, which is called upon to pay one-third of the contract cost, make black white or make a pavement at grade which is not at grade. It thus becomes obvious that the award of the relief here sought, if it is to deal fairly with both parties to the suit; requires this court to determine what pavement, if any, must be relaid, and also requires a constant and continuous supervision over the work done pursuant to the court order that it may be ascertained not only that when it is finished it is at grade, but also that it has been done in the manner and of tire quality detailed by the contract.

When this suit came on for final hearing the court indulged the sanguine view that it could be easily ascertained whether there had been a substantial compliance with the requirements of the contract. Over two thousand two hundred typewritten pages of testimony have been taken, devoted almost exclusively to matters of levels, details of construction and opinions of experts in road construction touching technical matters. In. all these matters the testimony is in radical conflict. The engineers even disagree in running levels at given points from the road side to its centre, and also in ascertaining whether drainage at given points is from the tracks to the curb. Touching what constitutes a substantial compliance with contract grade requirements in contracts of this nature, the expert witnesses also radically differ; some testify that no variations from grade exceeding one-fourth of an inch are allowed in road work of this kind, others are equally positive that one-inch variation is allowable — that is, one inch above and one inch below the grade called for. It is thus manifest that any decree calling for reconstruction will necessarily involve the court in a degree of supervision, direction and final judgment in matters alike, practical and technical, which cannot be properly assumed.

Any attempted review of tire authorities touching the jurisdiction of a court of equity in cases of this nature would add little if anything to the literature of the subject. Every text-writer on specific performance and on equity jurisprudence has treated the subject with reference to the adjudicated cases, and many of the adjudicated cases embody an exhaustive review of the authorities in England and in this country. I think it may be said to be now regarded as an accepted rule, that subject to a few specific exceptions, contracts for building or construction will not be enforced in specie, and that the rule finds its essential foundation in the difficulties attendant upon the efforts to enforce and adequately supervise tire execution of such decrees, such difficulties emanating from the impracticability of supervision, from the numerous questions which necessarily arise pending or at the conclusion of the enforced work, from the necessary ascertainment of substantial performance, from the extent to which defective performance may be excused and what compensation, if any, may be made for deficiencies; and these difficulties are enlarged and intensified in all cases in which the performance of the contract involves the exercise of skill, judgment and technical knowledge. In Ross v. Union Pacific Railway Co., 1 Woolw. 26, 36, Mr. Justice Miller reviews the cases forming exceptions to the rule against decreeing specific performance of building contract, and concludes that three concurrent elements exist in all cases which may be regarded as exceptions to the general rule. These elements he defines as follows: “1. In each case, the building was to be done upon the land of the person who agreed to do it. 2. The consideration for the agreement, in every instance, was the sale or conveyance of the land on which the building was to be erected; and the plaintiff had already, by such conveyance on his part, executed the contract. 3. In all of them, the building was in some way essential to the use, or contributory to the value, of: adjoining land belonging to the plaintiff.”

Perhaps there should be added to the exceptions above noted a somewhat recent line of eases for the enforcement of trackage and operating contracts between railroads. See 6 Pom. Eq. Jur. (2 Pom. Rem.) § 761. In an able and exhaustive note on the general subject by Mr. Freeman, appended to Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, as contained in 68 Am. St. Rep. 753, he says: “While equity aims to supply a remedy wherever there is a right that cannot be adequately enforced at law, it refuses to be drawn into the absurdity of substituting for an imperfect legal remedy an equitable one less perfect and more cumbersome and inexpedient.”

I will advise a decree denying the relief sought.


author: Howell, V. C.

text:
      W. A. Manda, incorporated, v. Delaware, Lackawanna and Western Railroad Company et al.
    [Submitted May 26th, 1915.
    Decided June 15th, 1915.]
    1. Where, in a suit against a railroad to compel it to provide a private crossing, a sewer was at such grade that for the construction of a crossing at a point proposed it would have to be lowered, the crossing could not be ordered at such point; since the municipality, not being a party, was not subject to the orders of the court.
    2. Under P. L. 1903 p. 659 § 26, providing that it shall be the duty of every railroad company owning, leasing, or controlling any right of way for a railroad within the state, where such road intersects any private land, to provide and keep in repair suitable wagonways across such road, it is the duty of the court authorizing the construction of a private crossing in a landowner’s suit therefor to arrange one suitable and convenient in view of the rights, duties and obligations both of the landowner and the road under all the facts.
    3. In a suit against a railroad to compel the construction of a private crossing, evidence Held to show that a particular location would be the most practicable and convenient of all suggested.
    4. All the work upon a private railroad crossing authorized by the court in a property owner’s suit for its construction against a railroad crossing his land must be done at the road’s expense.
    5. Where the court, in a suit for a private crossing against a railroad, authorized such crossing, it should direct, from considerations of safety, that the crossing run from the level of the complainant’s land on one side of the track to its level on the other 'in a straight line, and at right angles to the line of the track, and that its grade from the level of the land to that of the track should not exceed eight feet in the hundred.

      6. Where the court, in a suit for a private crossing against a railroad intersecting land, authorizes the construction of a crossing at grade,' it will require the road to install and maintain in good order an electric warning bell notifying the approach of a train at a distance of not less than one thousand two hundred feet.
    On final hearing. On bill, answer, replication and proofs.

      Mr. William H. Carey, for the complainant.

      Mr. Maximilian M. Stallman, for the defendants.
   Howell, V. C.

'The controversy in this case arises out of the elevation of the tracks of the Morris and Essex railroad, now under lease to the Delaware, Lackawanna and Western Railroad Company, through the village of South Orange, and the consequent destruction of a crossing at grade from the lands of the complainant on one side of the tracks of the railroad company to its lands on the other side thereof. The railway tracks at the point in question run in a northerly and southerly direction, the eastbound trains running northerly and the westbound trains running southerly. At the time the railroad was constructed the lands now owned by the complainant belonged to Samuel Brown; they descended to Pamela Tillou, from whom 'or from whose heirs .the title was derived to W. A. Manda, who conveyed' the same to the complainant corporation. The Tillou tract was divided by the railway line. About two acres thereof lie on the easterly side of the tracks and about six acres on the westerly side. The railway right of way over the Brown tract was acquired by condemnation, and during the life of the railroad company there have been three different points at which the railroad has constructed crossings for the owner of the said lands. The most northerly of these crossings was at Fourth street. This street was laid out and dedicated by Mrs. Tillou and appears to have been accepted as laid out, but it was laid out in both directions- only to the railway line and not across it. This crossing may be called the northerly location. About two hundred and fifty feet south of Fourth street the railroad company constructed for the landowner another grade crossing, which may be called the middle location; and later on, between the two, there was also constructed a crossing which, I understand, was meant to be a mere temporary affair, but which was in use at the time the track elevation interfered with all the methods of crossing the line. During these proceedings the railway company offered tentatively to furnish to the complainant a crossing at the extreme southerly boundary of his property, which may be called the southerly location, but which will not be considered, for the reason that I understand that by common consent a crossing at this point would be declined by both parties. There are, therefore, but two available and satisfactory locations for the crossing, and these are the northerly location and the middle location herein above inferred to.

The northern location at Fourth street seems to me to be one that cannot be adopted. It was used for upwards of twenty years by the Tillous, and later by Manda and the complainant; it was reached from the east side of the railway line by a roadway constructed by the landowner to Fourth street, and its use was effectuated by traversing this short road its full length to Fourth street at its very junction with the railroad line, driving onto the street, turning at a right angle and crossing the railroad and driving off the railroad property onto the Tillou or Manda property lying on the west side of the railway line. This, it will be observed, involved the use of a small portion of Fourth street at the point where that street joins the railroad. It does not appear that the grade of Fourth street at this point has ever been established by the village. The maps and diagrams in evidence show that the street has been excavated somewhat in order to allow its use by the complainant and its predecessors in title, but this excavation, or grading, if it may be called such, is manifestly a piece of work not executed by the village because of its abruptness and lack of uniformity.

There is another observation to be made about this crossing. There is a storm water sewer running down Fourth street to the railroad; thence on the railroad’s property underground to Third street; thence down Third street toward the outlet. Through Fourth street this sewer is on village property; thereafter it is constructed on the railroad property, and its upper surface is now only a few inches beneath the surface of the ground. To construct a crossing at Fourth street would require that the grade of the bottom of the crossing should be about four feet below the present grade of the railroad, and therefore about four feet below the present grade of Fourth street at that point, this depression being necessary in order to provide adequate head room; and it is quite obvious that neither the grade of the street nor the position and location of the sewer could be changed in the slightest degree, except by agreement and arrangement with the village of South Orange. The village is not a party to this proceeding, and is not attempted to be made amenable to any decree that may be made herein, nor, indeed, do I see how this court could make any decree or give any directions whatever to the village in relation to this crossing for pure lack of jurisdiction over the municipality. These circumstances seem to me to render it impossible for the court to establish a crossing at Fourth street of the character required by the complainant "for the proper conduct of his business and the use of his land therefor.

Let us next consider what has been called in the case the middle location. This is about two hundred and fifty feet south of Fourth street and is the point at which there was a private grade crossing for the complainant and his predecessors in title for many years. The location is satisfactory to both parties. They differ with regard to the kind of crossing which should be constructed, the railroad company being willing to construct a grade crossing at this point, and the landowner desiring an undercrossing. The elevation of the tracks at this point, when completed, will be about ten feet above the former level of the grade crossing. The complainant states that its business requires, and should have, eleven feet head room. This would require a lowering of the bottom of the crossing about three feet, making allowance for the depth of the rails, ties and other overhead construction. The complainant objects to the grade crossing at this point, on the grounds of difficulty and danger; it says that it would be difficult to carry its loaded wagons up the grade to the new level of the tracks, and would be very dangerous because of the large number of passenger trains constantly passing at high rates of speed over the point in question. But it fully appears by the testimony that an eight per cent, grade could be easily constructed, and that a grade of eight feet in the huudred is not greater than many grades in public highways throughout the state which are not deemed steep; and that as to the danger of crossing, it is true that a large number of passenger trains at high rates of speed will use the tracks at this point; yet it appears that while a grade crossing at and near this point was used for many years by the complainant and its predecessors in title, no accident ever happened, nor was anybody ever injured or anybody’s property destroyed, by collision with a moving train or otherwise. There is, however,, another important factor to be considered, and that is the cost of making an undercrossing at this point as compared with what appears to be the market value of the complainant’s property lying east of the railway line. This was considered in Speer v. Erie Railroad Co., 64 N. J. Eq. 601; 68 N. J. Eq. 615; 70 N. J. Eq. 318; 72 N. J. Eq. 411, to be an important factor. From the evidence in the cause I conclude that the complainant’s property, which lies east of the railway line, is worth not to exceed the sum of $7,000, while, according to tire figures submitted by witnesses on both sides, the construction of an undergrade crossing at this point would cost very much more than that amount, in fact, nearly twice as much.

There is considerable evidence by expert railroad engineers as to this relative cost, but I find myself unable to compare them satisfactorily, for the reason that they proceed from different bases and upon different theories. The defendants estimate the expense of the construction of the undercrossing at this point to be about twelve thousand dollars. Their plan of doing the work, however, consists of completing the elevation and then constructing an undercrossing by means of a tunnel, or otherwise, through the embankment. They say that under the circumstances this is the only practicable way of doing it. The expert witnesses for the complainant, however, say that the cost would have been not one-half of the above amount if the crossing had been arranged for and constructed as part, of the whole work of track elevation. Yet they are obliged to admit that it would have been impossible to carry out their plan unless the railroad Compaq could have occupied, during the period of elevation, a strip of land on the west side of the track to which it could temporarily shift its tracks, and to which it has no right or title. This obstacle might have been removed, possibly, but I am convinced that the only method of doing the work is the method that the railroad company has adopted, and even if their unit prices are somewhat exaggerated, as is claimed on the part of the complainant, there yet is a wide margin for the railroad company to claim that the expense of making the crossing would much exceed the value of the complainant’s land on the east side of the tracks.

Another objection to a grade crossing at the so-called middle location consists in tire fact that a.large quantity of the complainant’s land would necessarily be taken in building the slopes to the embankments necessary to be constructed in order to raise the grade of the roadways to the grade of the railway. This, however, I consider to be a small objection for this reason. The complainant is willing to take an undercrossing at this point. In order to reach it, it would be necessary to depress the road through the complainant’s grounds to lead to the crossing. This would require slopes almost as great and occupying almost as much of the complainant’s land as would the slopes of the embankment.

There is another matter which was largely discussed at the argument. This related to the direction in which the approaches to the grade crossing at the middle location should take. Two plans were submitted by the defendants. One a straight embankment, beginning on the complainant’s land east of the railway and running to the railway line; thence over the crossing at grade, and thence in a direct continuation down the westerly embankment to reach the level of the complainant’s gardens. The other plan contemplated approaching embankments running parallel with the line of the railway tracks. The latter strikes me as being awkward and dangerous, and if a grade crossing is to be constructed at that point, L see no reason why the first proposed method should not furnish an adequate and reasonably safe and convenient crossing.

Again, any grade crossing at this point, or elsewhere, is objected to by the complainant upon the ground of danger. I have already remarked that during the many years that the complainant and his predecessors in title have been crossing the same railroad at about the same point at grade, no accident had ever happened to either persons or property.

There are about one hundred trains a day (from six a. m. to six i\ m.) which pass this point in both directions, or, as was said at the argument, one train every twenty minutes, on the average. I think it quite well demonstrated that an approaching train from the north can be seen nearly two thousand feet away, and an approaching train from the south about eleven hundred feet. As an additional safeguard, a warning bell might be erected, and with this, I think that a crossing here could be made reasonably safe.

The railway companies claim: that they are bound, if at all, to maintain the crossing at the point in question only so long as the lands now owned by the complainant on both sides of the line shall remain vested in the same person or corporation, and that in case the complainant should make sale or other disposition of its lands on one side of the track, their duty to maintain the crossing would at once cease. While there is nothing in the case which shows any immediate probability or possibility of such' a division of the lands in question, it still remains a possibility^ and, if the contention is correct, it ought to be considered by the court as a factor making weight in favor of a grade crossing at this point.

The charter of the Morris and Essex Railroad Company (P. L. 1.835 p. 29 § 9) provides that—

“It shall be the duty of the said company * * * where the said road shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon ways over and under said road, so that he may pass the same.”

The present General Railroad law (P. L. 1903 p. 659) makes a somewhat similar provision which reads:

“It shall be the duty of every railroad company owning', leasing or controlling' any right of way for a railroad within this state * * where said railroad shall intersect any farm or land of any individual, to provide and keep in repair suitable and convenient wagon ways over, under and across said railroad.''

I do not find any substantial difference between the two provisions, for surely a farm crossing which has been constructed either under or over the railway line must necessarily be said to have been constructed across said railroad.

We assume that complainant is entitled to some kind of a crossing, and, indeed, it is conceded by the defendant that the complainant is absolutely entitled to a grade crossing, and this they are willing to provide for it. Complainant, however, is not bound to accept any offer made by the railroad company, ox-even to íxegotiate for one, because, as owner of land on both sides of the railway, lie has a right to a safe axxd convenient means of passiixg from one portion of his land to another portion thereof.

When a crossing is constructed under the authority of the court, it is the duty of the court to arrange a crossing that shall be suitable and convenient, considerixxg the rights, duties and obligations of both the landowner and the companies. The proposition is very well stated in Wademan v. Albany, &c., Railroad, 51 N. Y. 568, found on the brief of the complainaixt. Beyond this the rule of law can hardly go, for every case must finally be disposed of on its own facts and on its own merits.

I am, therefore, of the opinion that, all things considered, the most practicable axxd convenient crossing would be at the middle location.

To make the crossing reasonably safe and convenient for the use of the complainant, the following directions should be observed:

1. All the work upon the crossing must be at the expense of the railway companies.

2. The approaches to the crossing must run from the level of the complainant’s land on one side of the track to the level of the complainant’s land on the other side of the track, in a straight line and at right angles to the line of the railway.

3. The grade from tbe level of tbe complainant’s land to the level of the railway on either side of the track must not exceed eight feet in tbe hundred.

4. If the complainant desire it, the railway companies shall construct this crossing with a horizontal section next to the track on each side of the crossing long enough to accommodate a team and truck or an automobile truck.

5. The railway companies must install and maintain in good order an electric warning hell notifying the approach of a train at a distance of not less than twelve hundred feet.

These details of the construction are all that occur to me now. If there are others, they may be mentioned to me at the time of settling the order.


text:
    George W. Kennedy, administrator, &c., v. Tranquility Cemetery Company.
    [Submitted June 14th, 1915.
    Decided June 28th, 1915.]
    1. Upon a bill for an accounting there are two inquiries, the first of which is whether the complainant is entitled to an account at all, and the other of which relates to the state of the account. In determining whether the complainant is entitled to an account, the only material evidence on the original hearing is that going to prove the right to an account and the ordinary decree is that an account shall be taken, and if it should appear that complainant is not entitled to an account, the bill will be dismissed.
    2. Before the complainant can put the, defendant to the trouble and expense of au accounting before a master, ho must demonstrate by preponderance of evidence that there is not only a duty to account, but a substantial claim from which he may have a reasonable degree of certainty of recovering a sum which is not beneath the minimum limit of the, court’s jurisdiction.
    3. A cemetery association was incorporated by a special act approved April 4th, 1873 (B. 74 1873 p. 1583), making the amount paid for its land and the amount expended in improvements its capital stock, divided into shares of $10 each, and providing that one-half of the net proceeds of lots should be used for improvements and the balance divided among the stockholders. It issued to its promoters all of its capital stock without consideration, and continued in debt until 1911, when it received about $1,000 from a purchaser of lots which amount was needed for improvements. — Held, that, even if the issuance of stock was within the legislative authority, promoter arid stockholder was not entitled to an accounting.
    1. Where the stockholders of an incorporated cemetery association permitted its affairs to be conducted by trustees elected by the lotholders and acquiesced in their management, the lotholders might lawfully conduct the affairs of the association under “An act to regulate cemeteries,” act March 24th, 1899 (P. L. 1899 p. 884) and act March 13th, 1901 (P. L. 1901 p. 64), declaring that the management of cemetery associations shall rest in a board of trustees, who shall be lotholders.
    On final hearing on bill, answer, replication and proofs.

      Mr. George M. Titus, for the complainant.

      Mr. William H. Morrow, for the defendant.
   Howell, V. C.

The Tranquility Cemetery Company was incorporated by a special act of the legislature approved on April 4th, 1873, P. L. 1873 p. 1523. The act contains the following provision:

“The sum of money which the corporation may agree to pay for the tract of land to be used and occupied as before mentioned, and the sums of money which may be expended in embellishing, improving, beautifying, erecting fences and buildings, and in making all needful repairs, shall be the capital stock of said association and shall be divided into shares of $10 each, and that the net proceeds of all lots sold shall be appropriated to pay the purchase-money for the land conveyed to the association, and that after the purchase-money shall have been fully paid and satisfied, then one-half of the not proceeds of all lots sold thereafter shall be appropriated or funded for the purpose of maintaining improvements made or to be made, and the building or repairing of all houses or buildings erected upon the lands of the said association, and the balance of the proceeds of such sales shall belong to and be divided among the stockholders according to their several interests.”

Tin? promoters of the enterprise were the complainant, George W. Kennedy, and his brother Edgar V. Kennedy. They made the arrangements for the purchase of the lands, procured the same to be laid out and plotted on a map, and to be graded and planted with trees, and so prepared for cemetery purposes; and caused the title to the same to be transferred to the corporation. The corporation paid off the purchase-money and the moneys which the promoters had expended in embellishing and beautifying the grounds, building fences, &c., and has continued its operations as a cemetery association ever since. It has purchased more ground, made other improvements, cared for and protec Led the whole property, embellished and beautified it as well as it could with its limited income. This income has hitherto been wholly derived from the sale of burial plots, and it has been so scanty that the association has been under the necessity of anticipating its income and of borrowing money from time to time to carry out the objects of its incorporation. It happens, just at (he present time, that by reason of a large purchase the association has in hand 'eight or nine hundred dollars which the complainant claims is subject to the exigency of this suit.

After the claim of George W. Kennedy for purchase-money paid by him, and other advances had been satisfied, the association issued to him one hundred and forty-five shares of its capital stock, such issue having been made June 11th, 1874. On June 15th. 1876, these shares were transferred to Rebecca J. Kennedy, his wife, and upon her death the same came to him as her personal representative.

The case shows that at or about the time when the certificates of stock were issued to George W. Kennedy, similar certificates of a like amount'were issued to his brother Edgar V. Kennedy. The theory evidently was that when the corporation had paid or provided for the payment of the purchase-money so that the claim of the original grantors therefor should be wholly satisfied, then the association might issue its shares of stock in pursuance of the section of the charter hereinabove quoted. I do not feel certain that this is the proper construction of the legislative authority. The construction so adopted gives to the two promoters the total issue of stock and complete control of the property and business of the corporation, and that without any consideration whatever except -the pains and trouble they had taken to put the enterprise on its feet. It may well be doubted whether the legislature intended any such result as that. The question is not easy of solution, and I shall not attempt to decide it at present, for the reason that there are other grounds on which the rights of the parties must be adjudicated. It is possible that the scheme which was contrived by the promoters may come within the purview of the opinion of Vice-Chancellor Stevens in East Ridgelawn Cemetery Co. v. Frank, 77 N. J. Eq. 36.

But conceding, for the sake of the argument, that the share interest in this enterprise which is claimed by the complainant is a valid one, the question arises whether the association is liable to account to the complainant for one-half the purchase price of all the lots which have been sold. He now contends that each sale is a transaction by itself, and that immediately after the purchase-money was fully paid it was the duty of the association to divide the money derived from the sale of lots as each lot was sold and distribute the one-half part thereof to the stockholders. If this is the correct situation, it seems strange that the complainant should have allowed another and a quite different theory to prevail for so many years. Not until this suit was brought does any contention of this character appear, and I conclude that this is introduced as a mere afterthought, and that it forms no portion of the original plan as the same presented itself to the mind of the complainant.

In bills for an accounting there are always two inquiries. The first is whether the complainant is entitled to an account at all; the other relates to the state of the account. For the purpose of determining the first question the court listens to evidence upon the original hearing tending to develop the fact of liability. Chancellor Green says, in Hudson v. Trenton Locomotive Co., 16 N. J. Eq. 475, that upon a bill for account the only material evidence upon the original hearing is that which conduces to prove the complainant’s right to an account, and that the ordinary decree is that an account shall be taken. On the original hearing, therefore, the court will determine whether the defendant is bound to account, and, if so, will settle the principles upon which the account must be taken. If it should appear upon such original hearing that the complainant is not entitled to an account from the defendant, then the bill will be dismissed. Applying that principle to the case in hand we find that until 1911, or thereabouts, there never was a time when the cemetery association was not in debt. This indicates either that the purchase-money of the land had not till then been fully paid up or that the business was a losing venture from the start. If the association was always in debt np to that time, how could there he anything due to the complainant upon his own theory of his cause of action P Iiis only ground conld be that the persons in charge of the association’s affairs had robbed it of its funds, but this is nowhere shown, or attempted to be shown, by any kind of competent evidence.

What the facts do show, however, is that there is nothing to account for; that up to this time all the income of the association has been needed to carry on its business as a cemetery corporation, and that it never has made any profits or had in hand any money which was not immediately needed for expenditure upon the cemetery grounds. Before the complainant can put the defendant to the trouble and expense of an accounting before a master, be must demonstrate by a prep'onderance of evidence that there is not only a duty to account, but a substantial claim from which lie may have a reasonable degree of certainty of recovering a sum which is'not beneath the minimum limit of the court’s jurisdiction. I do not think that the complainant has shown any such situation, and, therefore, in my opinion, he is not at the present time entitled to an accounting from the defendant, even were there no doubt whatever about the standing of the so-called shares.

The money now in hand amounting, as it does, to something less than a thousand dollars, happens to he in the association’s treasury, because a single individual recently bought from the association a largo plot in the cemetery, and this money, as is abundantly shown by the evidence, is immediately needed for the purpose of plotting out more of the cemetery company’s land into burial plots, for repairs, painting the fences and the gates, grading and preparing other lots, for sale, introducing water and continuing the work of embellishing -and beautifying the grounds. It undoubtedly was intended by the legislature that the enterprise should be self-supporting, and was not intended that stockholders who received their stock without consideration should take one-half of the proceeds of the sales of lots and leave the association to depend for its existence, embellishment and beautification upon the voluntary contributions of people owning lots therein.

Early in the history of the association the stockholders seemed to have abandoned their function and to have permitted the affairs of the association to be conducted by the lotowners. At any rate, for the last twenty years or more, the lotowners have conducted all the affairs of the association by trustees elected by themselves and not by the so-called stockholders. Complaint is made of this, and it seems to be alleged by way of aggravation of the charges against the association; but in my view the action of the lotowners was acquiesced in by the stockholders, and, according to the testimony of some of the witnesses, was expressly authorized by them at a meeting called for the purpose of considering the question. At any rate, the lotowners have been, and are now, conducting the affairs of the association, and at the present time are doing so, as it appears to me, lawfully, in pursuance of the authority of an act of the legislature entitled “An act to regulate cemeteries,” found in P. L. 1899 p. 824 and P. L. 1901 p. 64.

I do not think, therefore, that the complainant derives any advantage or loses any right by reason of the fact that the business of tire association is being conducted by the lotowners instead of the stockholders.

My opinion, therefore, is that the bill must be dismissed.


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    A. Fink & Son v. The Butchers’ Union, No. 422, of Newark, N. J., et al.
    [Decided July 24th, 1915.]
    Where the employes of a firm engaged in the manufacture of provisions and meats have gone on a strike because their employer has determined to maintain an open shop, and have conspired, in conjunction ivith a butchers’ union and others, to establish a boycott against him and his products by means of the distribution of cards, circulars and posters, containing untrue statements and threatening and offensive language, among the employer’s customers, urging them not to buy his products, enforced by intimidation and personal threats, and by inducing union workmen not to deal with such customers, whereby the employer’s business is greatly injured, an injunction will issue to restrain such acts, the purpose of defendants being, not to legitimately advance their own interests, but to coerce the employer to comply with their wishes by ruining his business.
    On motion lor preliminary injunction.

      Mr. Clark McK. Whittemore and Mr. Abram H. Cornish, for the motion.

      Mr. Henry Carless, contra.

   Howell, V. C.

The bill in this case is filed to prevent the defendants from maintaining a boycott against the complainant and the wares and merchandise which it manufactures and deals in. The complainant is a New Jersey corporation, having its principal office and place of business in Newark. It manufactures and produces provisions of various kinds, principally meats and sausages, and its. customers are widely spread over that portion of the state which lies adjacent to Newark. It has about $250,000 invested in the business, and its total sales prior to the strike of its employes in January last was of the value of about $100,000 a month. The principal stockholders of the company are stockholders of a corporation doing a similar business in the county of Hudson, and up to the early part of January last both the Jersey City factory and the Newark factory were union shops, that is to say, the workmen were all union men and the work was done in accordance with the union rules. Owing to some difficulty between the Hudson county company and its employes, which caused a strike -there, the complainant determined that its factory or shop should no longer be conducted as a union shop, but that after the first Monday of January, 1915, it should 1)0 conducted as an open shop, that is to say, open to union men and non-union men on equal terms, and as the men left their work at the end of the week they were told to come back on the following Monday to work, at the same wages and under the same conditions as theretofore, but that the shop thereafter would be an open shop. Thereupon nearly all of the men went on a strike, leaving only about twenty-five out of the whole number of seventy-five in the complainant’s employ. Shortly after the complainant succeeded in filling the vacancies and has gone on with its business, but the strike, accompanied by a boycott, has continued down to the time of the filing of the bill.

The bill alleges that the defendants, or some of them, have combined together and agreed among, themselves and with the officers and delegates of the union, known as local union No. 422 of Newark, New Jersey, and the Essex trades council and its affiliated unions, and with butchers’ union local No. 190 of Hudson county, for the purpose of causing all the persons who were purchasing the complainant’s products, and dealing with the complainant in the ordinary course of business, to stop making such purchases and to refrain altogether from business dealings with the complainant; that they have agreed and combined together to effectuate this purpose by means of persuasion, intimidation and annoyance, by the use of intimidating, offensive language and threats to boycott the complainant’s merchandise and products, by printing and distributing cards, circulars and posters containing threatening and offensive language, by employing or securing persons to go from house to house to call on families of union working men who deal with the complainant’s customers, to induce such customers to refrain from dealing with the complainant, by means whereof certain of the persons who were and had been dealing with the complainant and purchasing its goods and merchandise have altogether suspended such dealing, and that others have been obliged to curtail their purchases from the complainant as a result of the unlawful acts of the defendants; that the complainant’s business has been greatly damaged, and during the two months next preceding the filing of the bill had fallen off nearly $22,000. Copies of the printed matter used by the defendants in their campaign of persuasion, coercion and intimidation are annexed to the bill. The fact that they have been circulated in the manner set out in the bill is tacitly admitted, or at least is not denied, the denials in relation thereto reaching only to denials that certain named individuals or associations were responsible therefor. The statement that the circulars were not addressed to the public, but were addressed only to members of the union, appear on the face of the exhibits to be untrue. They are a constant appeal to the "consuming public in general” and to business people who purchase or sell meat jwoducts. A large number of them contain the statement that the complainant locked out its men, and a sympathetic appeal is addressed to the public generally in their favor on account of having been driven from their work in mid-winter and without warning, a statement which, so far as the papers in this case show, is untrue. The exhibits call upon the public generally to abstain from using the complainant’s products, and many instances are shown in which retail dealers who have'for years been customers of the complainant have been threatened with ruination of their business; in many eases members of the union and former emix^es of the complainant have visited the localities of retail dealers who have been in the habit of purchasing goods of the complainant and have there distributed cards and circulars calling upon such retail dealers and the public to refrain from buying complainant’s meat, and in some cases men have paraded in, front of such retail dealers’ places of business for a day at a time with placards suspended Erom their shoulders advising the public generally not to buy the complainant’s products. There was one poster which was quite largely used which was printed in red ink and contained at the top a skull and cross-bones in a frame, and under it these words, “A Fink & Sou’s products are unfair to organized labor,” with a union label at the bottom showing that it was printed by a union shop. This is, perhaps, the most distinctive specimen of intimidating matter produced in the ease. That it is intimidating and was intended to have that effect is apparent at the slightest glance. Accompanying some of their circulars were lists of retail dealers and others who were regular customers- of the complainant, and the appointment of committees was requested to visit these people and induce them to stop patronizing the complainant and to desist from purchasing its goods. In other eases cards, which are called market cards, and which are given by the unions to retail butchers to show that they are in sympathy with organized labor, have been taken from the butchers for the reason that they would not submit to intimidation by the defendants. One of the characteristic cards reads as follows (Exhibit É) :

“Notice to the meat buying public. We, the butcher union workmen of the city of Newark are compelled to take the following action against this meat market because our men have been locked out of A. Fink & Sons for over six weeks. O’Connor meat market, 48 Winans avenue, Newark, N. J., conducts a non-union meat market and sells A. Fink & Sons non-union products, which are not under the government inspection, therefore you do not know what you are buying for your money.”

Cards of that same sort were printed and distributed, with a mere change of name, against Oscar Leonhardt, O’Connor’s meat market, Benedict’s meat market and Schlesinger’s meat market. Enough has been said to show the general character and nature of the printed matter used by the defendants in their boycotting campaign against the complainant. To go further would be superfluous. All these things are universally held .to be unlawful. They constitute together a cause of action based upon a conspiracy entered into by the defendants for the purpose of ruining the business of the complainant and its customers, not for the benefit of the unions or their policies; not because there is in contemplation any sort of influence on the labor market, but to maliciously interfere with and ruin the business men and stop their sales in whom and in which they have no interest whatever, in order to drive the complainant into compliance with their wishes. I need only cite the cases of Barr v. Essex Trades Council, 53 N. J. Eq. 101; Martin v. McFall, 65 N. J. Eq. 91; Jonas Glass Co. v. Glass Bottle Association, 72 N. J. Eq. 653; affirmed, 77 N. J. Eq. 219; Quinn v. Leathem (1901), A. C. 495; 70 L. J. P. C. 76; Bucks Stove and Range Co. v. Gompers, 221 U. S. 418. In Quinn v. Leathem the decision makes a distinction which puts actions .of the defendants in this class of cases upon the proper ground. “In Allen v. Flood (1898), A. C. 1, 67; L. J. Q. B. 119, the purpose of the defendant was by the acts complained of to promote his own trade interests which it was held he was entitled to do although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was to injure the plaintiff in his trade as distinguished. from the intention of legitimately advancing their own interests.” It is quite clear that in the case at bar the action of the defendants consisted of a conspiracy or combination to injure not .only the complainant but all persons who, as merchants or otherwise, dealt in or purchased the complainant’s products. If it were lawful to go so far as this there is no limit to the mischief to the public which such combination and confederacy would not reach to. It would go to the extent of forbidding an absolutely disinterested person from purchasing or eating meat prepared by the complainant— a most absurd proposition.

An injunction order should therefore issue restraining the defendants from instituting or maintaining a boycott against the complainant and the products of its factories. It appeared at the argument that some of the defendants were not served with copies of the bill and the. order to show cause. In so far as these persons have not appeared voluntarily they cannot be held. There are, likewise, some of the individual defendants who have denied all complicity in the unlawful action charged by the bill. These denials, however, are in a stereotyped form and as such have very little weight. It is very much the same as if twenty witnesses should be produced before a court and each one should swear to the same set of facts in the same words. Suspicion would be at once aroused at such uniformity of action and a jury could not be criticised if it disregarded the same ‘altogether.

Another defence was set up. In December, 1913, it is alleged, the complainant made an agreement with Butchers’ Union, No. 422, that it would unionize its shop or factory upon condition that the union would undertake to advertise the complainant’s business and bring in new customers; that in pursuance of such agreement the union did so advertise the complainant’s business and brought many new customers, whose names are given in the affidavits. This statement, however, is categorically denied by the manager of the complainant’s business, who is alleged to have made the agreement, and, further, it was proved that' all the persons claimed to have been introduced as new customers of the complainant were, in fact, old customers antedating the proposed agreement. Even if this were not true, the agreement set out in the affidavit of Mr. Ered Meyer is so scrappy and incomplete that no cause of action could be founded on it, nor can it be used for the purpose of exemplifying the maxim, “He who asks equity must do equity.”

Upon the settlement of the order I will determine against whom the injunction should issue.