author: Pitney, V. C.

text:
    Fannie Fessler v. The Town of Union.
    [Submitted May 9th, 1903.
    Decided October 17th, 1903.
    Filed July 9th, 1904.]
    1. In case of the dedication of a square to the public, while the bare legal title remains in the dedicator in trust for the use expressly or impliedly declared in the dedication, the right of possession vests in the municipality, which holds a sort of secondary title in trust for the purposes of the dedication.
    2. The owners of lots bounding on a public square have a private right, over and above that of the public at large, to have the square kept open.
    3. The filing in the county clerk’s office of a map, platted into streets and lots, surrounding an open square marked “Liberty Place,” in the centre of which a pond was marked, trees being designated around the edges, and the selling of the lots by reference to the map, constituted a dedication to the public as an open pleasure ground, which did not extend to the use of the square by the municipality for a public building.
    4. The legislature has no power- to alter or extend a dedication of a public square, as again'st one owning -lots bordering thereon, and sold to him with reference thereto.

      5. P. L. of 1866 p. 521 ch. 214, authorizing a town in which a square surrounding a pond had been .dedicated to the public to fill up the pond, grade and improve the property, and continue a street over and through it, and providing that such square should be town property, gave no power to the town to erect a building on such square.
    6. The wrongful erection of a building by a town on a square dedicated to the public is a breach of the trust under which the town holds the property, of which it can take no advantage unless acquiesced in by the cestui quo trust.

      7. Consent by a property owner to the erection of a building on a public square cannot be construed as a consent to the erection of other buildings thereon.
    8. An encroachment on a public square is an offence punishable by indictment only, and one of the public cannot maintain-an action or suit therefor unless he is individually and peculiarly injured thereby.
    9. The owner of lots fronting one hundred and fifty feet on a public square, whose house lot is within thirty feet of a bell tower wrongfully erected by the municipality, to be rung in case of fire, suffers a peculiar and individual injury thereby, such as to enable her to maintain an individual action therefor.
    10. The fact that adjoining lot owners similarly situated have not joined in such owner’s suit, nor brought suit on their own account, does not prejudice her rights.
    11. A lot owner who suffers a peculiar and individual injury by the wrongful erection of a tower on a public square by the municipality, may maintain an action against such municipality on account of its breach of trust in that behalf.
    12. A municipality, cognizant of its lack of right, advertised for the construction of a tower on a public square without notice to an adjoining lot owner, who was incapacitated to transact business for herself. Her agent had no notice of the proposed action until material was brought on the ground, when he at once protested verbally and promptly employed counsel. The contract for the erection of the tower was dated February 8th, 1901, and filed with the town clerk February 19th, and the materials for the tower were probably not brought to the square for some time. The preparation of the bill required considerable investigation and compilation, but was filed, with affidavits, as soon as possible under the circumstances, viz., April 10th, 1901. — Held, that the bill was filed with reasonable promptness.
    13. A property owner suing a municipality for the wrongful erection of a tower on ¿'public square, and praying for its removal, with other relief, is entitled to a decree for the removal of the tower, it being an inexpensive one, capable of removal and re-erection without serious injury.
    The object of this bill is to restrain a nuisance in the nature of a purpresture. It is also, in effect, a bill by A cestui que trust to restrain a breach of trust by a trustee.
    The complainant is the owner of ten lots, each twenty-five feet by one hundred feet, and each facing on Eranklin street, in the town of Union, in the county of Hudson. The rear of six of which lots, and also the rear of two other lots of the same size which do not face on Eranklin street, she alleges bound upon a public square which, was dedicated to the public by the OAvners of a tract of land Avhich comprised the complainant’s lots, and many others in the neighborhood, by the usual mode of laying the plot out in streets and lots, filing the same in the county clorFs office and selling-and conveying lots by reference to the ma]).
    On that map appears a plot of land not laid out in streets, but so marked as to dedicate it to the public.
    (x\ copy of so much of that map as comprises the. plot in question and complainant's holdings is annexed.)

      ' The nuisance of which, she complains is the erection of a fire-bell tower on that square and within about thirty feet of her premises. The structure is composed of iron posts, beams and braces.
    The defendant claims no legal title to the premises on which the fire-bell tower is erected except such as is derived from the same acts of dedication upon which the complainant relies, and a sort of adverse possession or user of some part of the square which, however, does not include the locus of the tower.
    Some time prior to the year 1852 the land in question was part of a tract of about forty-five acres, the property of the Hudson County Real Estate Company, and was surveyed in that year and laid out in streets, lots, &c., by William Iiexamer, who filed in the clerk’s office a hand-made map of it March 15th, 1855. This map does not appear to have the clerk’s endorsement on it. At the same time there was filed, and so marked by Mr. Gilchrist, then county clerk, a lithograph copy of that map with some additions.
    These lithographs, as might be expected, were made in great numbers and handed to all purchasers. In fact, a large number, if not all, of the lots wore disposed of by a sort of lottery or raffle among the members of the association and the lithographs distributed to them for the purpose of reselling, and all conveyances were made by reference to it.
    The tract is bounded on the southwest by the Iioboken and Hackensack turnpike, and was laid out in streets at right angles to each other and nearly on north and south and east and west courses, but cutting the Hoboken and Hackensack turnpike at an acute angle.
    To the northeast of and parallel with that street was laid out a street called Kossuth street, which also-cuts the other streets on the map at an acute angle.
    The lots laid out on the map are nearly all twenty-five feet by one hundred feet in size, and are all separately numbered on the map, and the evidence indicates that the town has been built up in accordance with that map.
    On that map one of the streets, running north and south, was called Iiutton street (now called New York avenue); another, running east and west, was called Eranklin street. One hundred feet south of Eranklin street, on the east side of Iiutton street, was left on the map an open space one hundred and fifty feet wide, three hundred and thirty feet along on the east side and two hundred and twenty feet along on the west side next to Hutton street, making an acute angle at the southeasterly corner thereof. On this space on the map is laid down a small lake shaped like an elongated egg, and extending from about seventy-five feet from the southeast corner to within about forty feet of the northwest corner and marked “Indian Pond,” and southwest of it is printed the words “Liberty Place.” In the northeast corner, between the pond and the angle, is laid down a small triangular plot, as if for a Bower-bed. Kossuth street, if its lines were continuous, would cross the pond diagonally.
    In nearly the centre of the lake is marked an island with a tree on it, and on each side and on the southerly end a row of trees is marked.
    On the hand-made map the pond is somewhat smaller and does not extend so far to the southward, and no trees are laid down on it except one on the island, and no mark of a triangular inclosure is found to correspond with that on the lithograph.
    The proofs show that there was at the time of the making of the map, and for years afterwards, an irregularly-shaped pond of stagnant water, which varied in depth and size with the condition of the weather. The drainage was to the southward, and the ground to the north and east of it was comparatively dry and solid.
    At the time of making the map and selling therefrom there were no trees except that on the island in the middle bf the pond.
    Most of the lots owned by complainant face on Eranklin street and six of them abut in their rear on this vacant lot.
    There was also laid out on this map, on the east side of the said square, seven lots, numbering from 429 to 435, inclusive, of which lots complainant owns 429 and 430, which are immediately in the rear of four of the lots which she owns facing on Franklin street. These seven lots did not front on any street and, with the exception of number 435, had no outlet on any street, and the only access to them from the public highway was over this square.
    Of these lots numbers 431, 432 and 435 were conveyed by the Hudson County Land Company to several purchasers by a description which expressly hounded them on “Liberty Place.”
    On the 15th of June, 1857, the Hudson County Real Estate Company made a lease to John Ehlers, by which they demised and let to him the square in question by the following language:
    “All that certain lot, parcel or tract of land and land under water situate in the township of North Bergen aforesaid, and which on a certain map of property belonging to the said The Hudson County Real Estate Company, made by William Hexamer and duly filed in the clerk’s office of the said county of Hudson on the fifteenth day of March, a. d. 1853, is marked, designated and laid down as Indian pond, together with the land and premises surrounding said pond, and unnumbered and not laid out into lots as shown on said map, a part of which is known and designated as ‘Liberty Place,’ bounded westerly by I-Iutton street, northerly by lots No. 378, 379, 380, 381, 382 and 383; easterly by lots.No. 429, 430, 431,' 432, 433, 434, 435 and 476, and southerly by lots No. 474 and 475, as said street and lots are laid down on said map, respectively, excepting and reserving to the said parties of the first part, out of the said premises above described, a space of twenty-five feet wide immediately along the line of said lots above mentioned for a public road, so as to allow a public way all around said 'pond, which public way is to be immediately adjoining- the lots above mentioned,”
    for the term of ten years at an annual rental of $30, to he paid “to the trustees of School District Ho. 6 in said township for the time being for the use and to he applied by said trustees for the education of/poor and indigent children at Union Hill in said township,” with privilege of renewing for ten years.
    In 1856, after the raffle had taken place and many of the conveyances made, two common law judgments, aggregating less than $2,000, were recovered against the Hudson County Real Estate Company and all the premises comprised in the map were sold at sheriff’s sale on or about December 20th, 1859, to Frederick Baare, Jacob Schweitzer and John Ehlers, in whom, or their survivors, the record title to the park in question is now vested.

      They subsequently made conveyances to the holders of title to such 'of the lots as had been disposed of by lottery upon payment of a small sum of money by each.
    The probability is that this was done to cure any defects which might have arisen in the title by reason of the decision of the court of errors and appeals in Wooden v. Shotwell, in 1854, reported in 23 N. J. Law (3 Zab.) 465, and same case, affirmed on appeal, 24 N. J. Law (4 Zab.) 789.

    The town of Union was incorporated in 1864 by an act of the legislature, approved March 29th, 1864. P. L. of 1864 p. 561 ch. 330.

      ■ In 1866 the legislature passed a supplement to that act, which supplement was approved March 20th, 1866. P. L. of 1866 p. 521 ch. 214-

    Section 13 of that supplement provides as follows:
    “That the said council shall also have power and authority to fill up the pond and grade and improve the property surrounding the same, as the same is laid out and designated on the map,entitled map of the property belonging to the Hudson County Real Estate Company, known as Union Hill; the said pond known as Indian pond, and certain property surrounding the same, having been laid out on said map for public use, and, in case said council think proper so to do, continue Kossuth street through and over the same; and the said pond and the property surrounding the same thus laid out for public use shall also be town.property.”
    The authorities of the town, some time prior to the year 1891, had granted leases or permissions to various persons to erect temporary buildings on some portions of the square, and two "small structures were erected immediately in the rear of complainant’s dwelling, which, it is proper to observe, occupies a portion of the fourth lot to the east of Hutton street, or New York avenue, the three adjoining lots to the west thereof being used as a yard.
    Some time after the year 1891, as the result of a petition of the property owners, including the complainant, all those temporary buildings were removed, leaving the square originally laid out entirely free from the encumbrance of any building with an exception presently to be stated. The pond was more or less obliterated, and Kossuth street was extended through it, thus bisecting the square and leaving much, the larger portion thereof between that street and the rear of complainant’s property. The title to the lots owned by complainant was vested in her husband in 1884 and came to her by his will in 1887.
    In the year 1891, the defendant, being desirous of erecting a building for fire department purposes, determined, if practicable, to place it on this “Indian Pond” lot.
    Objection was made by complainant through her son-in-law, Mr. Worth, who attended to her business, the complainant being unaccustomed to business, besides being in feeble health.
    The defendant consulted its counsel, Mr. Euss, who prepared an elaborate and well-considered opinion, coming to the conclusion that the defendant had no right to place any structure on the square, nevertheless the defendant decided to proceed with the building, if no one objected, and it succeeded in obtaining Mr. Worth’s consent, upon condition, as he swears, that the erection should be temporary in its existence. The result was that a hose house about twenty-five feet wide by forty feet deep was erected on the east side of New York avenue, thirty feet south of complainant’s property.
    Affairs stood in this condition until the winter of 1901-1902, when the defendant determined to erect the fire-bell tower now in question. It was erected fifty feet in the rear of the hose company house and thirty feet distant from complainant’s rear line and almost directly in the rear of her dwelling.
    There is no proof that complainant had the least notice that defendant intended to erect this building until her son-in-law saw the material (mainly iron beams, ready to be assembled) brought upon the ground. The exact date is not given, but the contract was accepted February 19th, 1902. He immediately protested to one or more of defendant’s officers, threatened a suit, and called on and attempted to employ Mr. Euss, who was not then town counsel; failing in this, he applied to and retained Messrs. Grouse & Perkins. They, as soon as practicable, prepared a bill and affidavits and applied to this court for an injunction, but as the building was partly constructed before the application was made the court declined to impose an interim restraint and the case was brought to final hearing.

      Mr. Randolph Perkins, for the, complainant.

      Mr. Frederick Frambach, Jr., for the defendant.
   Pitney, V. C.

Upon these facts the following questions arise:

First. What was the scope and purpose of the original dedication ?

Second. Has that scope or purpose been altered or enlarged by either (a), the legislation above cited, or (b) by any subsequent occurrences ?

Third. Is, or was, the complainant, at any time, as the owner of lands abutting on the square, entitled to relief against the proposed erection ?

Fourth. If so, has she in any manner lost or waived that right ?

Upon most of the foregoing questions it seems to me that the law is so well settled in New Jersey as not to admit of doubt.

The leading authority is, of course, the case of Methodist Church, &c., v. Mayor, &c., of Hoboken, 33 N. J. Law (4. Vr.) 13, and the numerous cases which have followed it.

It is impossible to distinguish that case from the present, so far as the dedication goes.

It is laid down as a general rule that the bare legal title remains in the dedicator.

In this case it appears that it remains in the three men who bought in the property, including the square, at a sheriff’s sale on a common law execution. They have made no conveyance of the title to the “Indian Pond” lot.

The rule is generally stated to be that while the bare legal title remains in the original dedicator in trust for the uses expressly or impliedly declared in the dedication; in case of the dedication of a street or public square the right of possession vests in the municipality, which holds a sort of secondary title in trust for the purposes of the dedication; and that is the precise position of the defendant here.

No case was cited to me by counsel where the precise scope and purpose of such a dedication and the duties and powers, of the municipality were drawn distinctly in issue, but the subject was treated by Mr. Justice Depue in the Hoboken Case, 33 N. J. Law (4 Vr.) at p. 17. There the piece of land was marked on the map of dedication as “Square” simply, and the learned justice says: “The word ‘square/ on this plot of ground, indicated a public use, either for purposes of a free passage or to be ornamented and improved for grounds of pleasure, amusement, recreation or health. That is the proper and natural meaning of the term and its ordinary and usual signification. It is unquestionably true that the owner might, in the act of dedication, have declared the special public use to which he intended to donate the lands, and they would have remained subject to such uses. In this case he has not done it. There was nothing to indicate such special use in the original map. The word ‘square/ as a term of dedication, imported a complete and unrestricted abandonment to the public uses above indicated.”

Again (at p. 19) he says: “But the power of the local corporate authorities is vested in them only as the representatives of the public and for the protection and regulation of the public use. They cannot sell the lands so dedicated, nor release or extinguish the uses for which they were dedicated, nor employ them in any %vay variant from the purposes for which they were designed. But within the limits of the purposes and uses for which the dedication is made — to regulate the use — the authority of the local corporate authorities is unlimited, against which no mere private 'right can be set up.”

Mr. Justice Whelpley, in Jersey City v. Morris Canal, 12 N. J. Eq. (1 Beas.) 547 (at p. 554), uses this language: “Whenever the public, by an express municipal act, accepts the dedication, the public duty of putting the land to the use to which it was dedicated arises.”

In Price v. Inhabitants of Plainfield, 40 N. J. Law (11 Vr.) 608, the effect of the word “park,” being written on the face of a map, was discussed, and Mr. Justice Beed, speaking for the court of errors and appeals, uses this language:

“Had the word ‘square’ been upon the map, I suppose there would hardly have been a contention but that it worked together with the other acts — a dedication. If the words ‘public park’ had been upon it, no question would have arisen. But a park in a city means to the sense of every person a place open to everyone. It carries no idea of restriction to any part of the public or to any specific number of persons. Restrictions as to time of entrance or behavior of those entering are conceivable, but the idea that any class of the community is to be excluded would not be entertained primarily by any person in connection with the idea of a park within the limits of a city. That it was to be a place of public resort would be the impression which any person would receive by looking at the map in this case, delineating a tract of sixty acres with streets and k square or block upon which is marked ‘Park/ ”

In Bayonne v. Ford, 43 N. J. Law (14 Vr.) 296, Chief-Justice Beasley uses the following language: “It was truly said that when a dedication of this kind obtains, the local corporate authorities lake the interest so created in trust as the representatives of the public, and that they cannot sell the lands so dedicated, nor release nor extinguish the uses for which the dedication was made; and the theory therefore would be utterly inadmissible, oven if the fact were that the corporate authorities of Bayonne had laid out the road in question, that thereby they forfeited rights that belonged not to themselves but to the public at large. In point of fact, the street in question was not laid out by the city of Bayonne, but by special commissioners appointed under a special statute. The action of such officers had no effect in the way of destroying the public rights now in question.”

Now I think the word “Place,” as used here, in connection with the map showing the pond with the trees (which had not yet been planted) about it, had the same meaning as the words “square” or “park.”

It was a perfectly clear expression of the purpose of the donors that the space should be used for a pleasure ground for the public. There was, besides this, the evidence of two old gentlemen, who had been members of the Hudson County Real Estate Company, that such was the intention of the company, as expressed among themselves.

In this respect the case resembles the case of Weger v. Delran, 61 N. J. Law (32 Vr.) 224 There no name was placed on the square, but it was simply not laid'off into numbered lots, and there was proof of the dedication of the donor.

The learned judge says (at p. 226) : “Although the map did not designate this block in words as a ‘square’ or ‘park,’ yet it contained persuasive evidence that it was intended for a different use than that to which the other blocks were designed to be put, .and from Bechtold’s acts and declarations, which were admissible evidence, there was the plain inference capable of being drawn that he intended to dedicate the block to public úse, as was found by the trial judge in accordance with the cases in this state ■respecting the dedication of lands to public uses.”

The ease of Methodist Church v. Hoboken, 19 N. J. Eq. (4 C. E. Gr.) 355, arose in this wise: After the decision by the supreme court of the case of Methodist Church v. Hoboken, above referred to, parties interested procured an act of the legislature authorizing the city of Hoboken to purchase from the church the premises in question at a price not exceeding $10,000. Yot being able to agree, the city sued out a writ of habere facias possessionem and the church applied for an injunction.

Chancellor Zabriskio lays down the precise rights and estate ■of the original dedicator, the city and the public, as follows:

“The title or fee of tire land is in the complainants. That title is subject to an'easement which belongs to the public, which is the right to have it kept open and enjoyed as a public square. The defendants have no estate in it; their only right is the ¡lower and duty, as representatives of the public, to see to it that the public are not hindered in the enjoyment of their rights there;, and to effect this, they may maintain ejectment ■against anyone who takes possession of and occupies it to the exclusion of the public.

“The legislature may have the right, so far as the public is ■concerned, to annul the dedication and yield up the right of the public; but they have no power, if the oivners of the surrounding lols have the right as appurtenant to their lots to have this square Jcept open as a public square, to permit its occupation as against them for a town hall, nor to- subject the title or fee, which is oivned by the complainants, to a different easement from that which encumbered it when they acquired title.

“If the act of 1868 had unconditionally and immediately authorized the occupation of the tract for a city hall, it would have destroyed the easement of the public and with it the right of the defendants to- take the possession for the public.”

I think this statement of the law governing the subject is entirely accurate, and I desire to emphasize the distinction made by Chancellor Zabrislde, and which seems to me clearly to-exist between the right of the. public at large, including all persons who do- not have land bounding upon the square in question, and tire owners of lots bounding thereon. I am of the opinion, although, perhaps, it is not necessary to the decision of the present case, that the owners of the lots bounding on the square have a private right over and above that of the public at large to have the square kept open. That right is of the same nature as it would be if the original dedicator in making conveyance to the owners of those lots bounding on the square had covenanted that the square should be for public use and that no buildings should be erected thereon. In other words, they occupy the same position that the co-complainant White occupied in the case of Watertown v. Gowen and Bagg, reported in 4 Paige 510 (at p. 514, bottom, and p. 515, top).

TJpon principle as well as upon the dicta just cited, I am of the opinion that the dedication in this case was for the purpose of use by the public as an open pleasure ground- — -a ground with trees and a small lake, if the -latter was found desirable and practicable; that the dedication did not include the use of it for a public building, and that the defendant had no right under the original dedication to erect any building upon it.

Further, I deny the power of the legislature to alter or extend this dedication as' against the complainant. But, granting that power, I find none in the act above cited, so far at least as to 'the erection of any building thereon.

It is not necessary to determine whether or not the continuation of Kossuth street through the park was within the original dedication, since such continuation does not affect the questions here involved.

Yor does the declaration in the statute above cited, “that the pond and property surrounding the same shall also be town property,” add in the least to the rights of the defendant.

It is a fundamental principle underlying all the eases above cited that the dedication once clearly made is irrevocable and unchangeable.

If, as I hold, the defendant was without authority to erect buildings on the square, then their so doing was a breach of the trust on which it held the right of possession and control of this property;' and it is hardly necessary to say that the law ought to be, and is, that a trustee shall not be permitted to gain any advantage or increase his power by a breach of his trust unless it be, and that necessarily to a limited degree, where the breach has been approved and acquiesced in by the cestui que trust.

Here, at the request of the cestuis que trustent, all the buildings have been removed from the square with one exception, that of the hose house. Granting that for present purposes the complainant should be held to have acquiesced in that erection, yet it is quite clear, on general principles, that such acquiescence does not extend a hair’s breadth beyond its actual limits on the ground.

A consent to the erection and maintenance of that building cannot by any correct principle be held to be a consent to the erection of another building in a different place. This seems too plain for argument.

We come, then, to the question of the complainant’s standing in this court.

The general rule is that any encroachment on a public highway or public square is an offence against the public, punishable by indictment only, and that one or more of the public cannot maintain an action at law or in equity therefor unless he is so situated as to be injured thereby in a manner and to an extent peculiar to himself as an individual as distinguished from-himseif as a member of the public at-large.

The complainant is the owner of ten lots, comprising a boundary on the square in question of one hundred and fifty feet in the immediate neighborhood of the tower in question. It is within thirty feet of her house lot, and the existence in that place of the tower and the ringing of the bell in case of fire will, in my judgment, produce an effect injurious to the enjoyment of her property, different in a marked degree to that of the inhabitants 'generally of "the town of Union, which is a closely built town of from fifteen thousand to twenty thousand inhabitants.

There may be a few other lot owners in the immediate vicinity who are interested in the same degree, or nearly so, as the complainant, and they may have tire same standing as the complainant, but the fact that they have not joined in this suit, or brought a suit on their own account, cannot prejudice the rights of the complainant, if those rights are, as I suppose them to be, peculiar to her by reason of her vicinity to the square.

But, of course, if I am right in my conclusion that she has, by reason of her owning lands bounding on the square, a right in the nature of a private right, then she has a right in addition to her being a member of the public, which dispenses with the necessity of resorting to the doctrine of peculiar injury-

Next as to her right to maintain an action against a municipality.

No point was raised by counsel for defendant that his client was entitled to any immunity from action if, in point of fact, its action was unwarranted in law; and no case was cited by counsel on either side bearing precisely on this point, nor have I been able to find any.

Moreover, I find no case, in this state at least, where the municipal authorities have ever been charged with a breach of their trust in that behalf.

But I think, upon general principles, the complainant must have a right of equitable action, otherwise the inhabitánts not especially interested in the existence of that square might unite and elect a common council which might be so far recreant to its duty and regardless of the rights of the landowners as to obliterate the square absolutely and devote it to business purposes.

Has the right of complainant been lost by laches in filing her bill?

■ The municipal • authorities, being fully aware of their lack of right in the premises, proceeded without notice to the complainant to advertise in the public prints for bids for the erection of the tower in question. It does not appear, and there can be no presumption, that complainant saw any of those advertisements or had any notice of them. At that time she was an invalid. Her son-in-law, who lived with her and looked after her business, swears that he had no notice of the action of the municipality until he saw some of the material brought on the ground. He then, as above stated, protested verbally and employed counsel promptly.

It. appears that the contract for the erection of the bell-tower was dated February 8th, 1901, and was filed with the town clerk February 19th, 1901. The tower was a skeleton constructed of iron, and its several parts undoubtedly were cut and shaped and prepared to be assembled before they were brought on the ground, so that it must have been some time later than the date and filing of the contract before they were seen by Mr. Worth.

For some reason, which may be inferred, Mr. Euss declined to proceed.

Messrs. Crouse & Perkins took up the case and prepared their bill and affidavits as soon as the circumstances would permit.

The preparation of the bill required considerable investigation and compilation and necessarily occupied some time. It was filed April 10th, 1901.

I think the bill was filed with reasonable promptness.

An application was made for an injunction, but before the order to show cause could be brought on for hearing the structure was partially erected and no restraint was imposed. The order of discharge was made expressly without prejudice to the complainant.

The prayer is that the materials of the tower may be removed from the ground and for other relief.

It appears that the structure is not an expensive one and that it may he taken down without serious injury to its parts and' removed and re-erected in another place.

I think that the complainant is entitled to a decree against the municipality providing for the removal of the tower and of all its constituent parts, and that she is entitled to recover her costs besides a reasonable counsel fee, which I shall fix upon hearing parties.


source: Caselaw Access Project

license: Public Domain

text:
    G-v. G-
    [Submitted November 16th, 1903.
    Decided November 21st, 1903.
    Filed July 9th, 1904.]
    1. Marriage contracted by parties, one of whom is impotent, is not void, but voidable merely at the instance of the disappointed party, and may be ratified by such party.
    2. Where a woman lived with her impotent husband for twenty years, and then, without suing for annulment of the marriage, separated herself and accepted a competent support from him for ten years longer, and until he discovered her in adultery and brought suit for divorce, such conduct on her part constituted an affirmance of the voidable marriage.
    3. Alimony is only allowed when the husband has been guilty of a matrimonial offence, and impotence is not such an offence.
    4. On petition for a divorce by the husband for adultery, and cross-bill by the wife charging impotence, conceding that adultery is an answer to the charge of impotence, each party is entitled to a simple decree, and the statute declaring that when each party is guilty of adultery neither shall have a decree, has no application.
    5. On petition by a husband for divorce for adultery, followed by cross-bill by the wife charging impotence, the husband, on proving his charge, having first filed his bill, is entitled to relief.
    6. Where a husband sued for divorce on the ground of adultery, and the wife succeeded in defending on the merits without having set up the impotence of the husband, and thereafter received support from him for ten years, she was not entitled, in a subsequent suit by the husband for divorce for adultery, to set up the husband’s impotence.
    7. The statutory remedy for the wife for extreme cruelty of the husband is divorce a mensa et tkoro and permanent alimony; but if the cruelty is sufficient to warrant a divorce a mensa she may separate herself from her husband, and such separation will constitute constructive desertion on his part, and if continued for the statutory period will entitle her to divorce a vineulo.

    8. When a wife voluntarily separated herself from her husband on the ground of his cruelty, but received from him a competent monthly support, there was no such desertion on his part as entitled her to a divorce a vinculo.

    9. A wife divorced a mensa et thoro is still under the obligation of •chastity, and alimony is conditional on her performance of that obligation.
    On final hearing on bill, answer, cross-bill and answer and proofs.
    The petition is by husband against wife. It alleges that the parties were married in May,' 1871; that they lived together until October, 1891, most of the time in this state, when they separated. It then charges that the defendant, at divers times between the 10th of August, 1902, and the 4th of January, 19D3, committed adultery with one L. at a certain house in the city of Tew York.
    The defendant, by her answer, admits the marriage, the residence in Tew Jersey and separation as alleged in the bill. She then denies the adultery as alleged.
    By way of cross-bill she says:
    “1. That before and at the time of and ever since the marriage of this defendant to the said petitioner, the said G. was physically and incurably impotent, and ever since the said marriage he has never consummated the marriage relation with this defendant.
    “2. That this defendant lived with the said G. until the month of October, 1801, in the hope that said G. would and could be cured of his said impotency; that she finally learned that he was hopelessly and incurably impotent.
    “3. That during said time said G. brutally abused and maltreated this defendant and frequently choked her and beat her so that her life was greatly in danger, and during a short period just prior to her separation, in the month of October, 1891, from the said G., he insisted upon and endeavored to force her to have vile, unnatural and criminal intercourse with him, and that when she refused so to do he violently choked and beat and maltreated her.
    “4. That by reason of said conduct and the disgust produced in the mind of this defendant through the same, and because she feared for her personal safety and because her happiness had been thereby totally destroyed, she separated from the said G., in the month of October, 1891, and refused longer to live under the same roof with him.
    “5. That after her separation from the said G., he filed' a bill or petition for divorce in this court against this defendant on the ground of adultery, and named therein a number of men with whom he charged this defendant with having committed adultery, and that the said charges were denied by this defendant and the said cause came on for trial, and the said bill was dismissed, with costs, in or about the year 1892.
    “6. That since the filing of said bill and since the separation between the said defendant and the said G. they have never lived .together under the same roof, and that by reason of the premises aforesaid the said G. has willfully, continuedly and obstinately deserted this defendant for the period of over two years last past.
    “7. Wherefore, she prays that she may be divorced from said G. for the cause of willful, continued and obstinate desertion aforesaid, and that she may have such further or other relief in the premises as the nature of the case may require, and she will ever pray,” &c.
    To ibis cross-bill tire petitioner files a formal replication, denying that the separation was due to either impotence or cruel treatment alleged in the cross-bill; denies the impotence; denies the cruelty and desertion, and alleges that the separation was entirely voluntary on the part of both parties and was begun and ever since continued by mutual agreement (this is admitted by defendant); that he has during such separation and until October, 1902, supported the defendant by regular monthly payments. (This is admitted by defendant.)
    For an allegation by way of demurrer petitioner sets, up that the separate allegations in the cross-bill of impotence and cruelty are incongruous and render the bill multifarious; and further alleges want of sincerity and good faith in the charge of impotence by reason of the great delay of the defendant to make complaint on that ground.
    The cause was brought to a hearing before a vice-chancellor on these issues on the 21st and 22d of October, 1903.
    At the opening of the ease the petitioner moved to strike out front the answer the allegation of impotence, but the vice-chancellor suggested that the matter should be reserved until after the issue of adultery should be tried and disposed of, in which suggestion both parties acquiesced.
    The evidence on the issue of adultery was then produced with the result that, on Friday, October 23d; 1903, the vice-chancellor pronounced against the defendant, finding her guilty as alleged in the petition, and gave the parties time to present written arguments on the remaining questions.

      Mr. Joseph Goult and Mr. Jay Ten Hyde, for the petitioner.

      Mr. Warren Dixon and Mr. Peter Bentley, for the defendant.
   Pitney, V. C.

The record, as it now stands, presents questions of some novelty. Cases of impotence, especially in this court, are so rare that the rules governing the action of the courts in such cases are not thoroughly settled.

In England the notion seems to have been entertained formerly that complete impotence rendered the marriage void ab initio, precisely the same as would the existence in life at the time of the marriage of an undivorced spouse of one or the other of the parties; or the fact that the parties were related within the prohibited degrees of consanguinity. This is evidenced by the mode in which suits were framed. The English judicial reports show that suits for a declaration of nullity on account.of impotence were, framed in this wise: A, falsely called B v. B. This wras the form used in suits for nullity for the other two causes mentioned. But the later cases establish clearly the doctrine that contracts of marriage between parties, one of whom is impotent, are voidable merely. The latest case is Turner v. Thompson, L. R. 13 P. & D. (1887) 37.

In this state, by the revision of March 27th, 1874, section 4, it was for the first time declared that

“Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent, and all marriages in such case shall be invalid from the beginning and absolutely void.”

Thus placing such a marriage upon the same basis as disability on account of a former husband or wife living, or on account of a marriage within the degrees of kinship prohibited by law, except that the issue of marriages within the degrees prohibited by law were not rendered illegitimate.

This classification was clearly illogical in that it made no distinction between a decree for nullity and a decree of divorce. That such a distinction exists was pointed out in the case of Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231 (at 241).

The legislature, in the revision of the Divorce act of 1903 (P. L. of 1902 p. 502), has changed the classification and has provided for decrees of nullity in the cases of another spouse living at the time of the second marriage and of marriage between parties within the prohibited degrees of consanguinity, and has provided for decrees of divorce from the bond of matrimony in the cases of adultery, desertion and incurable im-. potence, using the following language:

“In case the parties, or either of them, was at the time of the marriage physically and incurably impotent, or was incapable of consenting thereto, and the marriage has not been subsequently ratified.”

This classification is more logical. The two causes for nullity ab initio present the case of an absolute incapacity of one of the parties to contract a marriage, and the validity of such a marriage may be impeached at all times, in all places, by all parties and for all purposes. The only value of a judicial decree of nullity in such cases is that it works an estoppel and settles the question of fact for all time and so dispenses in subsequent cases with proof in pads of the disability.

In a case of impotency the parties have the power to contract and the marriage is binding for all purposes unless it is dissolved by a decree of a court at the instance of the party having the right to make the complaint.

Thus it seems to me clear that the widow of an impotent husband would be entitled to dower in his estate in the absence of a 'decree of dissolution.

The ground upon which the decree of dissolution is based is not an original incapacity to contract but the entire and complete failure of the consideration of the marriage contract. Hence, the better doctrine is that the contract of marriage is voidable merely and not void ab initio.

The section relating to impotence in the act of 1902 varies from that of 1874 in another important particular. That of 1874, as we have seen, declares the contract “invalid from the beginning and absolutely void.” That of 1902 gives tire right of divorce with the proviso “and the marriage has not been subsequently ratified.”

Thus it appears, that it not only has not declared the marriage void ab initio, but has, as I read the statute, assumed that it may be ratified.

This construction is undoubtedly the true one unless it can be held that tire words “has not been subsequently ratified” relates only to the member of the sentence immediately preceding it, viz., “or was incapable of consenting thereto.”

Be that as it may, the clear trend of authority, as I have stated, is that the marriage is not void ab initio but merely voidable at the instance of the disappointed party. If that is so, then the correct doctrine is that such party may ratify it.

It is suggested with much force that such ratification may result from a long continued acceptance and enjoyment of the benefits of a merely platonic marriage, so that the disappointed party will not be permitted after such long enjoyment to repudiate the contract.

This subject is elaborately discussed and carefully considered, with a complete citation of authorities, in several English cases.

The first is that of H — . f. c. C— v. C., heard below, in 1860, before Sir Cresswell-Cresswell, Sir Edward Yaughan-Williams and Sir George Bramwell, reported in 1 Swab. & T. 605; 29 L. J. Mat. Cas. 81; 6 Jur. (N. S.) 348; and on appeal, sub nomine, Castleden v. Castleden, 9 H. L. Cas. 186.

There, as here, the petitioning wife had lived for several years with her husband; then, ascertaining his impotence, one of her parents charged him with it, and he refused to live further with his wife. She then for a few years supported herself and then compelled her husband, indirectly, to furnish her with a complete or partial support, which she accepted. She failed in her suit, partly on the ground that she had not resorted to the extreme process of the English court to compel her husband to submit to physical examination, and hence had not furnished the best evidence of his impotence, but mainly, as I think the several judgments plainly show, because she had ratified the marriage contract by long acquiescence and accepting support from her husband.

The next case is that of M — . f. c. B — . v. B — . (1864) before the judge ordinaiy, Sir Cresswell-Cresswell, reported in 33 L. J. Mat. Cas. 203.

The parties were married in August, 1853, when the petitioning wife was twenty-nine years old; the husband was incurably impotent and the suit was brought ten years later.

The petitioner admitted that she had brought the suit, in part at least, for the purpose of vindicating herself from the rumors or reports which were circulated that the separation, which occurred in that year, was due to her violent temper, and that she was insane and not fit to cohabit as a wife. Her petition was refused, on the ground that it was, to use the expression of the English jurists, “not sincere but due to other motives.”

A third case, and one more nearly in point, is that of Reynolds, alias Wilkins, v. Reynolds, 45 L. J. P. 89, also reported in L. R. 1 P. & D. (1876) 405, decided by Sir Eobert Phillmore in a considered and written judgment.

There the parties were married in 1849 and the wife brought her suit in 1875. The proofs showed that the husband was impotent by reason of malformation; that they lived together for a year an'd nine months and then separated, to use the language of the wife, “because he ill-treated me and because we did not live comfortable.” They lived separate for nine years, and she then returned to her husband and lived with him for five and a half years, and then separated by reason, as she said, of his ill-treatment and his impotence. They then lived separate .until 1875. It was held, after an elaborate citation of authorities, that the petitioner was not entitled to succeed, because she had not shown two requisite elements, sincerity and promptness.

Another English case worth mentioning is that of M—., alias D — . v. D — ., reported in L. R. 10 P. & D. (1885) 75, 175. There a suit was brought by the wife against her husband for nullity for impotence and a cross-suit by the husband against the wife for divorce for adultery. The suit for impotence was first tried and the decree was granted. The adultery was not pleaded as a defence in the nullity suit, nor does it appear that the impotence was pleaded as a defence in the suit for adultery, but the proofs in the suit for nullity showed strong probability of adultery.

The petitioner contends that the present case shows ratification by the defendant, also lack of sincerity on her part.

It seems to me that the point is well taken. The defendant, after living twenty years with the petitioner in the hope of his recovering his virility, instead of suing for nullity separated herself from, him and accepted a competent support from him for ten years, and, so far as appears, would have continued so to accept it if he had not, upon discovery of her adultery with another man, brought suit for a divorce.

This conduct on her part was a distinct affirmance of the marriage relation. Necessarily so, since there can, I think, bo found no foundation in reason or authority for the position that a woman, who seeks a dissolution of the marriage tie on the ground of her husband’s impotence, is entitled to permanent alimony. Such alimony is only given where the husband has been guilty of a matrimonial offence, and impotence is not such an offence in any sense of the word in that connection.

I n the present case it is to be observed 'that neither the impotence nor the desertion is set up in the answer as a defence to the petitioner’s bill. Their presence and office is confined to that part of the answer which is declared to be a cross-bill and which prays for a divorce.

The answer was drawn by able and experienced counsel, and I cannot conceive that its frame was the result of oversight or accident. Indeed, the specific prayer in the cross-bill for a divorce is based on the charge of desertion and not on the charge of impotence.

But supposing counsel for defendant asks the court to amend the answer in that respect, or to consider the charge of impotence to be the basis of the prayer for other relief, viz., dissolution of the marriage, and suppose the adultery is no answer to her charge of impotence, and that charge should be admitted and the defence of acquiescence and ratification be overruled, the result would be that each party would be entitled to a divorce, and they are not within the ban of the statute which declares that if both of the parties are guilty of adultery neither shall have a decree.

Then, I repeat, each party is entitled to a simple decree, and the situation is not changed from what it would be if no assertion of impotence had been made.

But I do not think that the parties stand in this respect on an even footing. On tire view of the law most favorable to the defendant the marriage was in force and binding on both parties until the present proceedings were commenced by the petitioner and thence until, at the earliest, defendant filed her cross-bill, asking that the marriage be annulled. This result follows from the fact that it could only be annulled for impotence at her option and on her application. It follows that petitioner was at the filing of his bill rectus in curia, and, having proven his charge of adultery, is entitled to relief.

I am unable to perceive how the defendant can supersede that right by coming in after petitioner’s right has accrued and, so to speak, become vested, and asking that the marriage be annulled.

The maxim “He who is first in time is strongest in right” applies.

There is another fact in the case which seems to me to weigh against the defendant in this part of the case.

She alleged and proved that shortly after the separation her husband sued her for divorce on the ground of her adultery; that she defended on the merits and was successful. She does not allege that she set up his impotence as a defence, and the pleadings in that case, put in evidence in this, show that she did not. And yet, according to the present theory of her counsel, it would have been a perfect defence, or, at least, would have entitled her to a decree of divorce against him in the same suit. She apparently preferred to continue, as she did for ten years at least, to enjoy the benefits of the marriage relation.

I think, therefore, that the charge of impotence must be disregarded and that petitioner is entitled to an order striking it from the record.

Turning now to the charge of cruelty and constructive desertion based thereon.

This issue was not tried, but, at the suggestion of the court, counsel of defendant was asked if the defendant on the admitted facts could succeed.

We observe that it is not set up as a defence to the petitioner’s charge of adultery but is inserted in the cross-bill as a basis of affirmative relief against the petitioner, so that it is probably not necessary to consider the simple question whether extreme cruelty of a character sufficient to sustain' a decree for divorce a mensa et fhoro, standing by itself, is a defence to an action for divorce founded on the adultery of the wife, which question, so far as I know, has never been determined in'New Jersey.

The simple question, then, is whether petitioner has been guilty of such desertion of his wife as would enable her to maintain an action against him for divorce a vinculo matrimonii (which I shall assume for present purposes, though, like the other case, I believe, it has never been so held in New Jersey), would, if properly pleaded, be a defence to an action by the husband against the 'wife for divorce on the ground of subsequent adultery.

The statutory remedy for the wife against the husband for extreme cruelty on his part is a divorce a mensa et fhoro and permanent alimón)1'.

It seems, however, to be the well settled doctrine in New Jersey that if the cruelty is of a character sufficient to warrant a divorce a mensa et fhoro, the wife may separate herself from the husband, and such separation will be held to amount to a desertion on his part, known as constructive desertion, and if continued for the statutory period will entitle the wife to a divorce a vinculo.

This doctrine, though frequently stated in our reports by distinguished judges, was first acted on in this state in a reported case in Weigand v. Weigand, 41 N. J. Eq. (14 Stew.) 202. That, however, was a suit, founded on the twentieth section of the Divorce act, for support merety, which involved desertion but not continued for the statutory period to authorize a divorce, and while it was based on the doctrine that ’a husband who drives his wife away from his house by his cruel treatment of her is guilty of desertion in such manner as to warrant a decree at once in favor of his wife for support, it does not deal with, or throw any light upon, the question as to what must be the character of the continuance of such a desertion -in order to warrant a decree a vinculo.

The first and only reported case which dealt with that question is McVickar v. McVickar, 46 N. J. Eq. (1 Dick.) 490.

There the separation had lasted for about twenty years, during which time the wife had received no support from her husband. The cause of the cruel treatment was his devotion to intoxicants acting upon a naturally brutal disposition. The use of intoxicants with their effect upon his conduct continued for three or four years after the separation. He then appeared to reform, but made no attempt to make known to his wife his reformation or to resume his cohabitation with her or to support her. So there was not only the cruelty, which, in the opinon of the court, was a sufficient justification of the wife in leaving the husband, but also a complete failure on his part to furnish her with any support.

I can find no case where there has been a constructive desertion, justified by cruelty, and the husband has during the continuance of the desertion supported his wife, in which a decree a vinculo has been granted.

On the contrary, I find the case of Kyle v. Kyle, 52 N. J. Eq. (7 Dick.) 710, where there was a suit for divorce on the ground of desertion, where the petitioner charged that the desertion occurred in July, 1880, and the petition was filed some ten years later, and less than a year later she sued him in Now York for a divorce a mensa et thoro on account of his cruelty and succeeded. It was held that such decree was a bar to her action. While that case is not in point I think it has some significance.

In the present case the wife upon her separation, as the evidence, as I recollect it, clearly shows and as was admitted by counsel, accepted from her husband and rested satisfied with a competent monthly support, which was continued up to the time that he learned of her adultery.

In short, she received, without a suit, all that she would have obtained by a suit by reason of her husband’s cruelty, and, as I have said, a separation from bed and board and alimony is the statutory remedy for extreme cruelty.

In my judgment, in order to turn a voluntary separation by a wife by reason of cruelty into a desertion by the husband with such a continuance as satisfies the statute, there must not only be the cruelty justifying the separation, but there must be the failure on the; part of the husband to render to his wife that support which is tire statutory punishment for his cruelty, and that failure must continue for the statutory period.

Tf this view is correct, the cruelty alleged by the wife, the defendant in this case; will not help her, and it is not worth while to try the issue unless the petitioner, out of abundant caution in case of appeal, prefers to traverse the allegation.

It only remains to say that, supposing the cruelty were judicially established and the monthly payments proven in the case had been awarded by the court as alimony, the continuance of such alimony would be conditional upon the wife living a chaste life.

Under a divorce a mensa et thoro the marriage relation still exists and with it the duty of chastity. Such a divorce is not a license to the wife to indulge in sexual connection with another man, and the argument from the case of a divorce a mensa et thoro to that of a voluntary support and its acceptance is a fortiori. In the latter the court will introduce into the agreement for support the element that it will be conditioned upon a chaste life.

The case briefty stated, in solido, is this:

The parties were married in 1871 and lived together twenty years when they separated by mutual consent for the reasons, now for the first time claimed by the wife, first, for his impotence, and second, for liis cruel and bestial practices.

Shortly after the separation the husband sued the wife for divorce on the ground of her adulte^, which she defended on the merits, not setting up either the impotence or the cruelty, and succeeded in her defence. She then accepted from her husband a competent support in money and enjoyed it for ten years, and then solaced herself with the marital ministrations of another man while enjoying her husband's pecuniary support. Being discovered in her adultery and sued • therefor by her husband she their, for the first time, sets up his impotence and cruelty, not as a direct defence but as the ground of a divorce from her husband. Such a case on her part does not commend itself to an equity judge.

I will advise a decree according to these views.

The vice-chancellor adds the following:

After the foregoing opinion was promulgated and a decree accordingly advised but not yet signed by the chancellor, a motion was made before me to open it and permit the defendant to make actual proof of the impotence alleged. This mo.tion was based on several grounds. The only one of which I considered open to discussion after the foregoing opinion was that the evidence was competent under the general denial of the adultery by way of showing acquiescence, consent and connivance. I denied the motion on several grounds: First, that it could only operate as a defence by way of confession and avoidance and had not been so pleaded; second, that at the time of the trial it had not been offered to be proved and put in evidence under the issue of adultery or no adultery; and third, that the whole course of the proof of the case by the defendant and the facts established thereby in connection with the pleadings negatived the idea o£ actual consent, connivance or acquiescence. Those facts are that the parties separated hy mutual consent in 1891, and had lived separately ever since, and apparently had not met; that during the period covered by the adulteries proven herein, and for some time prior thereto;, the petitioner was living in the city of Trenton and the defendant in the city of Yew York, over fifty miles apart; that the petitioner had sued defendant for adultery in 1892, which of itself was the very opposite of consent, acquiescence or connivance; that defendant did not set up in defence to that action his impotence as a ground of defence or any connivance based thereon. In short, I found no place in the case proven by the defendant where the defence of positive consent, connivance or acquiescence could reasonably intervene, and so far as regards any possible constructive consent arising out of the bare fact of the impotence, I think it is covered by my previous opinion.

I ought to state that the counsel who actually tried the case before me asserted, as I understood him, that he did, in fact, formally offer to prove the impotence while his client was on the stand, but an examination of the stenographer’s notes shows that he was mistaken.

Then the other counsel of defendant urges that, as a result of the mode in which the court requested the several issues to be dealt with, his client has missed the opportunity of mitigating the character of her offence and of putting herself in the position of being entitled to the charitable viev? thereof, which naturally arises from the impotence of her husband. I think the defendant is not entitled to the assistance of the court in that direction. Before she solaced herself with the marital ministrations of another man, she should have dispensed with the pecuniary support of her lawful husband and should have sought and obtained a dissolution of the marriage tie.

It was suggested that the discussion of the value of the cross-bill was sprung upon the defendant’s counsel without proper notice.

The fact, as shown clearly by the stenographer’s notes, which were written up within three clays and with which my own recollection agrees, is that after I had stated my reasons for finding the defendant guilty of the adulteries charged, a full discussion followed as to the argument of the motion to strike out the charge of impotence found in the cross-bill. A day was fixed on which the defendant’s counsel should hand in a written argument. The defendant’s counsel subsequently asked for and took additional time for that purpose and then handed up a typewritten argument covering the question.

There can be no> question that the defendant’s counsel had every opportunity necessary to support the value of his client’s case on that charge except the actual production of the proofs. As my opinion is, of course, based upon the truth of the allegation of impotence, I do not see how defendant is injured thereby, and if I am wrong the defendant has her remedy by appeal.


text:
    The Edison Storage Battery Company and Thomas A. Edison v. The Edison Automobile Company of Washington, D. C., et al.
    I Submitted and decided December 24th, 1903.
    Filed July 9th, 1904.]
    1. A bill by an inventor and a corporation using his surname to enjoin its use by a defendant corporation alleged that its use had been enjoined by a foreign court in a suit brought by the inventor’s son, and it was claimed that the failure to allege that the injunction was dissolved was a suppression and want of frankness in the case. — Hold, that it was no objection to the bill, since the fact alleged was intended, apparently, only to show that the son, so far as practicable, had revoked his authority to use (he name, and his father was not a party to the former suit, and, besides, the present suit did not call for interim restraint, .to which the rule of frankness peculiarly applies.

      2. The 1'act that affidavits in opposition to an injunction against the use of a corporate name in violation of complainant’s rights show that the defendant corporation had no intention of manufacturing anything manufactured by complainants, is immaterial, where defendant’s charter empowers it to do so.
    3. It is no objection to injunction against the use of a corporate name that it does not appear that any wrong has been done, or that there is danger thereof to complainant’s injury, as in such a case complainant must act promptly, before the rights of innocent stockholders in the defendant corporation may become involved.
    4. A corporation incorporated to conduct a business apparently in competition with that of an inventor and a corporation already using his name, incorporated his surname in its own, basing its rights to use the same on an alleged grant from his son, but it was apparent that it sought the use thereof on account of the great prestige attached thereto, and not on account of any connection with the son or prestige connected with his name. — Held, that the son had no right to make such grant.
    5. Injunction is a proper remedy to prevent a corporation from including in its name the surname of an inventor already adopted and used by another corporation with his consent.
    6. Where a suit for injunction against the use of a name by a corporation is heard on an order to show cause on the bill, affidavits and exhibits, relief should, not await the final hearing where it appears from the defendants’ affidavits and admitted facts in the case that it is highly improbable, if not impossible, that defendants will finally succeed.
    Heard on order to show canse upon bill and affidavits and upon exhibits and affidavits on the part of the defendants.

      Mr. Robert II. McCarter, attorney-general, for the complainants.

      Mr. Norman Grey, for the defendants.
   Pitney, V. C.

The object of this bill is to prevent the defendant corporation, the Edison Automobile Company of Washington, D. 0.. from continuing to use the word “Edison” cither in its corporate name or otherwise in the conduct of its business, and from holding out to the world that the complainant, Thomas A. Edison, is the inventor of any automobiles manufactured or sold by said corporation, or that the complainant, the Edison Storage Battery Company, is the manufacturer of automobiles, or any part thereof, manufactured or sold by it, the defendant.

The facts, most of which are undisputed, are as follows:

At and prior to about the 1st day of October of the present year, 1903, the complainant, Thomas A. Edison, had been for many years and' was a well-known inventor with a worldwide reputation, and among other things had invented a great number of instruments and machines, designed for and connected with the use of electricity. Among other things he had invented what he claims to be a superior kind of storage battery for the storage of electricity for use in automobiles, and had assigned the same to complainant, the Edison Storage Battery Company, which was one of his numerous companies organized by him for the purpose of manufacturing and dealing in his various inventions, and, at the time before mentioned, the Edison Storage Battery Company was engaged in the manufacture of storage batteries' under Edison’s patent, and was selling them in the open market, and also selling them in connection with automobiles, and was also selling automobiles equipped with such batteries. At that time two gentlemen by the name of Joslin, father and son, were engaged in the business of dealing in automobiles in the city of Washington, D. C., under a corporation, organized under the laws of New Jersey, with the name “The Automobile Company of Washington, D. C.” At the same time complainant, Thomas A. Edison, had established his son, William Leslie Edison, in business in the city of Washington, D. C., under the name of the Edison Automobile Station. The establishments of the Joslins, carried on under the name of the Washington Automobile Company, and that of young Mr. Edison, under the name of the Edison Automobile Station, were rivals in business; the latter selling automobiles propelled by electricity stored in the Edison storage batteries.

About the 1st of October the Joslins approached young Mr. Edison with a view of consolidating their several establishments and changing the name of their own company to the name of “'The Edison Automobile Company of Washington, D. C.”

Young Mr. Edison and: the elder Mr. Joslin have made affidavits on this subject, which affidavits are not entirely in accord.

Young Edison swears that the object of the interview was to have the help and co-operation of young Edison in forming and incorporating under the laws of Yew Jersey a company with the name of “The Edison Automobile Company of Washington, D. C.,” having for its object the conducting of an automobile storage and repair business in Washington and elsewhere in the United States, and that the principal object of Joslin was, as he stated, to get young Edison’s consent to the use and insertion of the word “Edison” in the name of the proposed corporation; and he. swears that he stated to Mr. Joslin that he could not enter into any agreement for the formation of any corporation or copartnership or other business arrangement in which the name of Edison w;as to be used without obtaining the full consent of his father. He stated, so he swears, that the use of his father’s name was valuable, and that under an arrangement existing between him and his father he could not and would not permit the use of the name as proposed unless his father expressly consented thereto. Joslin thereupon said that he would call upon the elder Edison and ask his consent. That subsequently Joslin stated to young Edison that he had seen the elder Edison at his residence in Llewellyn Park, in Essex county, Yew Jersey, and had obtained his consent to the proposal; the language being, so young Edison swears,

“Yes, I have been to see your father and I had a very pleasant conversation with him, lasting about an hour, or an hour and a half, and your father seemed very much pleased at the prospect of your bettering yourself, and he has given his full consent for you to connect yourself with the corporation I propose to form, provided you keep the business you are now engaged in intact.”

That he construed the language of Joslin to be that his father had consented to the use of his name, and thereupon he entered into a written agreement with Joslin, a copy of which is annexed to his affidavit, and is not disputed, to the effect that the name of the Automobile Company of Washington (Joslin’s company) was to be changed to “The Edison Automobile Company of Washington,” the capitalization to be $100,000. The writing provides for the disposition of the stock and also contains an agreement to cancel an amount of $0,256.75 due to Joslin by his company, and that young Edison was to be the president and manager with a moderate salary, but a largo majority of the stock was to be under the control of Joslin.

Acting upon that contract, Joslin immediately employed a corporation company in Camden to organize the proposed corporation, and it was so organized with three persons named as directors, who, it appears now, had no interest whatever in it, except one W. B. Walcott, as to $1,000, and the control of the whole affair was turned over to the Joslins.

The purposes of this corporation, as set forth in its certificate, are very broad, viz., to manufacture, buy, sell, deal in and deal with and operate automobiles, &e.; to manufacture, buy, sell, construct, deal in and deal with. engines, machinery, apparatus, tools, equipments and all things in connection therewith, necessary, convenient, and useful in manufacturing, buying, selling and dealing in and with automobiles and motor vehicles; to manufacture, purchase, oiun, lease, dec., sell and dispose of, and deal in and with machines, compressers, generators, storage batteries, pumps, &c., for the manufacture, production, generation, distribution, use, •supply and application of electricity, compressed air, oil, gas or other motive power, &c.

As soon as Mr. Thomas A. Edison heard of this organization, that is on the 12th of October, he caused a letter to be written to that one of the organizers who was stated in the certificate to be the holder of almost all the stock, forbidding him to use Ihe name of Edison, and he received a reply, saying that they were not using the name of Thomas A. Edison; that the name used was that of W. Leslie Edison, and that it was so used at his direction.

Shortly afterwards, to wit, on the 16th of October, young Edison filed a bill in the equity side of one of the courts of the District of Columbia against the Edison Automobile Company of Washington and the two Joslins, asking that they be restrained from the further use of the name “Edison” and offering to return to the eompanjr, or to the Joslins, certain shares of stock in that company which were issued to him.

On the filing of that bill an interim restraint was granted, which was afterwards discharged upon the application of the defendants and upon an answer and affidavits made by them and filed, the grounds upon which the judge discharged it being that the bill was based upon the value of the name “Edison’’ generally, and the complainant, William L. Edison, could not complain of that, and that Thomas A. Edison was not a party to the suit.

Thereupon the bill herein was filed on tire 2d of November and an order to show cause granted thereon.

The affidavit of Mr. Joslin, as I.have said, disagrees somewhat with that of young Mr. Edison. Joslin says that at the interview between him and young Edison the proposition was that the separate business of each should be combined, and that it was not for the purpose of getting Leslie Edison to consent to the use of the name “Edison” but was for the purpose of getting Leslie Edison to act as manager and president of the combined business; that he did not inform Leslie Edison that his principal object was to get his consent to the insertion of the name “Edison” in the proposed corporation. (This statement, that the principal object was to get Mr. Edison to combine the business of the two establishments, namely, that of Edison and that of J oslin, and that Edison should be the manager and president of the combined business is important.)

Joslin further swears that young Edison did not, at that time, or at any other time, state to deponent that he could not enter into any agreement for the formation of any copartnership or other business in which the name of Edison was to be used without obtaining first the full consent of his father, &c., and denies that young Edison said anything about his inability to use the name of Edison in any business; but J oslin swears that Edison told him that he could not combine his business, known as the Edison Automobile Station, with any business without the consent of his father, and that he did not believe that his father would consent to such combination, as his father had established the Edison Automobile Station for him (Leslie Edison), and that he suggested that he (Joslin) should see his father (Thomas); that, acting- on the suggestion of Leslie Edison, he (Joslin) did see Thomas A. Edison with reference to the combination of the business, but that Thomas A. Edison would not give his consent to such combination, stating that he had established the Edison Automobile Station for his son Leslie and wished to see what success he would have in operating the same — did not wish it combined with any other business. And he says he (Joslin) said nothing to Thomas A. Edison with reference to the use of the name “Edison” by the proposed corporation or any corporation. (This is also an important circumstance.)

He further swears that after the interview with Thomas A. Edison he (Joslin) had another interview with Leslie Edison, and that at the last interview he did not inform Leslie Edison that his father (Thomas) had given his consent for Leslie to connect himself with the proposed corporation or any corporation, provided he kept the business, known as the Edison Automobile Station, intact; but at that interview he informed Leslie Edison that his father was not willing that Leslie should combine the business with that of the Automobile Company of Washington, as the father wished to see what success Leslie would have in that business. That after that conversation the contract set out in Leslie Edison’s affidavit was entered into (which, as we have seen, was a contract not for the formation of the new corporation but for changing the name of the old corporation). Tire affidavit of Mr. Joslin further proceeds to state that instead of changing the name of the Automobile Company of Washington to the Edison Automobile Company of Washington, he (Joslin) caused the defendant company, the Edison Automobile Company of Washington, D. C., to be incorporated with a capital stock of $100,000. Joslin’s affidavit then goes on to state that immediately afterwards a meeting of the directors was held and that Leslie Edison and W. B. Walcott, a majority of the directors of the corporation, were present, and that resolutions were passed by which the Edison Automobile Company bought the business of the old automobile •company of Washington for $79,000 in stock in the new company; that Leslie Edison was elected president and general manager and Walcott was elected secretary and treasurer of the company, and that the minutes were written up and agreed to by young Edison, and that the whole of the $79,000 of stock was issued to Josliu and he transferred $20,000 of it to young Edison.

He further states that it is not the intention of the Edison Automobile Company to manufacture anything, but only to sell •and deal in automobiles.

How young Edison came to be a director does not appear, for the original certificate of organization, a copy of which is annexed to the bill, shows that Edward H. Chew, Wilfred B-. Walcott and Mr. G. of Camden were the original incorporators and directors and that Mr. G. subscribed for all the stock except two shares.

How, it is to'be observed that according to Joslin's story the original purpose of the deal between the Joslins and young Edison was that the two separate businesses carried on by the Joslins and young Edison severally in the city of Washington should be combined; but when the Joslins found that the father, who probably owned the young man's business in Washington, would not consent to that, they were perfectly content to have young Edison as president and manager of their old business when transferred to the new corporation, and leave him at liberty, at the same time, to preserve and maintain and manage his own original business.

At the same time, the complete control of the new corporation remained in the Joslins, and they, having installed the name "Edison” in their corporation, could vote him out and deprive him of all voice in the company at the very next meeting of the directors.

According to Joslin's account, no mention was made by him to the elder Edison of any intention to use the word "Edison” — ■ nor, indeed, to the younger man — until the contract (which was iii the form of a letter addressed by Joslin to him) was presented to him for signature.

Now, under all these facts, and others that appear in the affidavits, it is quite palpable that the whole object of the manoeuvre on the part of the Joslins was to get the name of Edison in their corporation, and they now, by their counsel, claim the right to use that name by virtue of the consent of young Edison.

Under these facts it is simply incredible, and approaches the absurd, to suppose that those gentlemen were anxious to get the name of William L. Edison in their business for the salce of his-business capacity and influence. Of the latter, palpably, he had little or none. Palpably, it was the name of Edison, and the value attached to it by reason of the world-wide reputation of the elder Edison, that they were seeking. And the question is-whether they can succeed.

I ought to say, before considering that question, that criticism was made by counsel for the defendants upon the circumstance that the complainants did not set out in their bill the fact that the injunction granted by the AVashington judge had been already dissolved, and he argues that there was suppression and want of frankness in the case put forward by complainants. I do not understand that the complainant had any other object in inserting in his bill the fact that his son had brought the suit in the District of Columbia except to show that he had, as far as practicable for him so to do, revoked his authority to the Joslins for the use of the name “Edison” in incorporating their company. As was well said by the judge in Washington, in his opinion,. Thomas A. Edison was no party to that suit; he could derive no benefit from it and he could receive no harm from it.

The complainants’ case does not rest upon and is not affected one way or another by the result of the Washington suit. Moreover, it must be observed that the rule of frankness which the defendants’ counsel invokes is one which applies peculiarly to a case where the complainant, upon ex parte affidavits, procures an injunction or interim restraint without notice to the defendant. No interim restraint was granted herein, nor, indeed, was it asked for, before notice to the defendants. The defendants have had full opportunity to come in and state their case and .supply any omissions in the original presentation thereof by complainants. The matter omitted was not something within the personal knowledge of the complainants, but a public record.

I spend so much time on this point because I do not wish even to appear to undervalue the importance of the rule invoked by counsel.

Then, further, it is said that the affidavits show that the ■defendant corporation had no intention of manufacturing any storage batteries, or anything else manufactured by the complainant corporation. But the complete answer to that is that they have the power, by their charter, so to do, and if they are permitted to proceed with their corporation under its present name they will have the prestige of the elder Mr. Edison’s name for all they do and all that they sell.

The only question in the case is whether, having induced the young man to enter into the contract in question,'they can make use of that circumstance to use, in effect, the father’s name.

It is further urged that complainant should not file his bill or obtain any restraint because it does not yet appear that any wrong has been done, or that there is danger that it Will be done in the near future, to the injury of the complainant. But the complete answer to this is that in order to protect his rights to the use of his name the complainant must act promptly and before the rights of any innocent third parties who may have purchased stock in the defendants’ corporation may become involved.

In this particular class of cases, involving the right to use a name, prompt action is always required.

The defendants place themselves on their right to use the name “Edison” under the grant of the son, but under the circumstances of this particular case I think it sufficiently clear, under the authorities, that he (the son) did not have the right to make such grant.

It is impossible to imagine that the defendants were not fully aware of such lack of right, both in fact and in law. Joslin knew that the father had set up the son in business in Washington, and that he was unwilling that he should consolidate that business with any other business. That, I think, implied that he-should not use the name “Edison.”

Then the young man swears that he so told Joslin. This, indeed, is denied by Joslin, but the probabilities are all in .favor of its truth.

Then, as before remarked, it approaches the absurd to suppose that the Joskins wished to use the name “Edison” on account of any connection with the son or of prestige connected with the' name of William Leslie Edison. They were, as I have said, seeking the use of the name “Edison” on account of the great prestige attaching to the father’s name with regard to all matters involving the use of electricity.

It is common knowledge that automobiles especially, and even-street cars, are driven by electricity stored and accumulated in what are known as storage batteries. Hence the selling of automobiles, driven by electricity, by a company having the word “Edison” as a part of its name, would be an assurance of more- or less strength that the batteries so used were made by the elder Mr. Edison, or under his patents.

Now as to the law applicable to these facts.

The deliberate adoption by one corporation of a name, already adopted and used by another corporation, or incorporating in its name the name of an individual, seems to me to stand on a weaker ground of right than the imitation of a mere trade mark. It seems to me to be a more serious infringement of private-rights.

In England, one quite efficient remedy for this wrong is to-move the officer who by law controls the registration of corporations by certificate to change the name. . A provision for that remedy is not usually found in the statutes of the several states of the union providing for the formation of corporations.

In our statute of 1896 is found this elausé, under the head “The Name of the Corporation:” “No name shall be assumed already in use by another existing corporation of this state, or so nearly similar thereto as to lead to uncertainty or confusion.”

Then there is a provision in section 27 for a change in the name, but I know of no provision for compelling a change by any direct application therefor by other parties. But the power of this court to enjoin the use of a name is beyond all dispute. It was exercised in this state in the case, heard before me ex parte, of Glucose Sugar Refining Co. v. American Glucose Sugar Refining Co., 22 N. J. L. J. 147 (1899). And the right was asserted very distinctly in the case of Stirling Silk Manufacturing Co. v. Stirling Silk Co., heard by Vice-Chancellor Emery, and reported in 59 N. J. Eq. (14 Dick.) 394. There the case for preliminary injunction rested mainly on the question of trade mark, and the injunction was refused. The learned vice-chancellor’s views on the similarity of names are found on p. 396 et seq.

Other cases selected from numerous instructive authorities cited by counsel for complainants herein are Massam v. Thorley Cattle Food Co., L. R. 14 Ch. Div. 748 (1880); Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manufacturing Co., 37 Conn. 278 (1870) (where will be found an exhaustive collection of the authorities up to that date); Celluloid Manufacturing Co. v. Cellonite Manufacturing Co., 32 Fed. Rep. 94 (1887), per Bradley, J.; Rogers Manufacturing Co. v. Rogers & Spurr Manufacturing Co., 11 Fed. Rep. 495, per Lowell, Circuit Judge.

One of the headnotes to that case is significant: “Anyone has a right to use his own name in business, but he may be restrained from its use if he uses it in such a way as to appropriate the good will of a business already established by others of that name. [This is the important thing.] Nor can he by the use of his own name appropriate the reputation of another by fraud', either constmciive or actual.”

I think that language peculiarly apjDlicable here.

Another case is Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 942, in the circuit court of appeals, in 1892, before Judges Gray, Colt and Putnam.

That wus a writ of error to the circuit court on a judgment rendered on a verdict. The right of the plaintiff to recover was established unanimously, but the judgment was reversed on account of the admission of improper evidence in the matter of damages.

Another valuable case is that of Clark Thread Co. v. Armilage, 67 Fed. Rep. 896; S. C. on appeal, 74 Fed. Rep. 936. There the defendant established in Rhode Island a thread manufacturing company under the corporate name of the William Clark Company, by authority of a Mr. William Clark, wno was formerly connected with the old and great and well-established (dark Thread Company, of Newark, and the court declared, in explicit language, that but for the consent given by William Clark number one, the principal officer and manager of the old company, the defendant would have been enjoined in the use of their name.

An instructive case, also, is Massam v. Thorley Cattle Food Co., supra. There one Thorley had bought a receipt for a particular kind of food for cattle and had made it for many years and had acquired therefor a great reputation. After his death, his executors and trustees under his will carried on the business. Subsequently some persons fell in with a younger brother of (he deceased and induced him, in substance, to lend them his name in the manufacture of the same article — “Thorley’s Food for Cattle”- — the secret of which he had learned many years previously while working for his brother. The defendants organized under the name of the Thorley Cattle Food Company, and the surviving brother signed the memorandum for one share of one shilling. The English court of appeal (1880) held that the whole transaction was a transparent fraud and granted an injunction.

Another instructive case is Armington v. Palmer, in the supreme court of Rhode Island, and reported in 42 Atl. Rep. 308.

These and many other cases hold that there is no sanctity in the name being used by a corporation either directly created by special charter or organized under general laws. If organized under a special charter, it is usually chosen by the petitioners therefor. If organized under a general law, it is chosen by the organizers. In either case they adopt it at their peril.

The only question that remains is whether an injunction .should be granted at this time as to the use of the name or whether that remedy should await final hearing.

The affidavits put in by the defendants, in connection with the admitted facts in the case, satisfy me that it is highly improbable, if not quite impossible, that the defendants will succeed .at the final hearing.

The cost and trouble of changing their name, by eliminating the word “Edison,” will be slight, and if on final hearing they ¡shall succeed in establishing their right thereto, the cost of restoring it will be equally slight.

I will advise a decree to that effect.