text:
    Walter Reade, complainant, v. Thomas P. McKenna, defendant.
    [Heard June 17th, 1926.
    Submitted August 13th, 1926.
    Decided August 17th, 1926.]
    Where time was made the essence of a contract for sale of land, and the contract was not fulfilled at that time, the right to specific performance of the contract does not exist.
    On bill for specific performance. On final hearing.

      Messrs. Stein, Siein & Uannoch, for the complainant.

      Messrs. Perlcins & Drewin, for the defendant.
   Berry, V. C.

This is a bill for specific performance of a contract for the sale of land. The complainant is the vendee and the defendant the vendor. The contract is dated May 9th, 1925, and provides for the sale by the defendant to the complainant of certain lands in the city of Long Branch for the consideration of $50,000, $5,000 of -which was paid on the execution of the contract and the balance was to be paid $20,000 in cash at the settlement and $25,000 by the execution and delivery of a purchase-money mortgage in that amount. Hnder the terms of the contract settlement was fixed for May 25th, 1925. Time was not, in so many words, made of the essence of the contract, but it is apparent from the dealings between the parties that prompt action was intended. The complainant was represented by a Mr. Baron, a New York attorney, who prepared the form of contract, and defendant is himself a lawyer, so that the parties dealt “at arm’s length.” The day of settlement fixed by the contract was postponed by written stipulation to June 1st, to June 15th, and finally to June 22d, 1925. The last stipulation is dated June 11th.

On June 20th, Baron, Reade’s attorney, applied to Mc-Kenna for a further extension, which was refused. Baron’s version of what occurred at that time is as follows:

“He said that in view of the fact that these objections were outstanding that he wouldn’t enter into- a formal stipulation fixing a date, but he would co-operate with the title company and then he would fix a date, and I let it gO‘ at that until June 22d, when I made another attempt through a representative of my office to get a formal stipulation.”

The defendant’s version of what took place between him and Baron is as follows:

“Mr. Baron asked me if I would give another extension, that he had to go away, and I told him no, I would not. I said that 'at the last extension you said you wouldn’t ask for any more and we at that time both agreed that that should be the last extension.’ He said, 'Yes, I know it, but I have got to go to Cleveland’ — or Cincinnati or some place— and he said, 'I would like to have another extension as a personal favor.’ I said, 'I can’t grant it as a personal favor. This contract was closed with me at this reduced price upon Mr. Reade’s statement that I would be paid in cash the full amount, and that later the cash was cut in half to $35,000,’ and I said, CI have explained to you several times that I am losing valuable opportunities for investment of this money, and that I will not grant any further adjournments.’ Mr. Baron said, ‘Well,’ he said, ‘McKenna, I don’t think it makes any difference.’ He says, ‘Mr. * * * I am sure Mr. Reade can buy the property from you later at a reduced price. You have held it for over thirty years, and you weren’t able to sell it.’ I said, ‘Be that as it majr, I won’t grant any further extensions. You can send somebody else down to close the title; you don’t have to be here.’ ”

Baron was in court when this testimony of the defendant was giren, and did not take the stand in rebuttal, and made no denial of this testimony except as made in his direct testimony above quoted.

I am inclined to believe Mr. McKenna’s version of what took place at the meeting on June 30th, as it seems to be corroborated by the later acts of the parties and their representatives. On June 33d a Mr. Joseph, of Mr. Baron’s office, went to Mr. McKenna with a proposed written stipulation extending the time for settlement to a definite date, but Mr. McKenna refused to sign it. Joseph says that nothing else occurred on that occasion except that he requested McKenna to sign the stipulation, and McKenna refused; but McKenna says he first inquired of Joseph if he represented Mr. Baron, and on receiving an affirmative reply, tendered to Mr. Joseph a deed for the property, which was the subject of the sale, which Mr. Joseph refused, and that he, McKenna, then made a note of this tender on the papers. The note referred to1 appears on one of the exhibits. Joseph denies that any tender was made, but I am unable to accept that denial, as it is undisputed that on July 10th Baron saw McKenna and asked to be shown the papers tendered to' Joseph. If Joseph spoke the truth, why did Baron ask to inspect the papers? Baron did not deny that such a request had been made by him, and if McKenna had said, as Baron claims, that they would hold the matter of settlement in abeyance without day until the title objections had been cleared up, why was there any necessity for sending Joseph to McKenna on June 22d? Baron left for Europe on July 25th and did not return until late in August. During his absence the complainant was represented by his solicitors of record, but it is admitted that neither the complainant nor any of his attorneys communicated with defendant in any way between June 22d and August 18th, except for the call of Baron on McKenna on July 10th, when he asked to be shown the papers which had been tendered to Joseph. In the meantime, the defendant, assuming that the complainant had abandoned the contract, listed his property for sale with various real estate agencies. About August 10th, 1925, a real estate boom struck Long Branch and vicinity, and the value of the property in question went up fr.om $50,000 to $100,000 or $125,000. Complainant alleges this as the reason for McKenna’s refusal to perform while McKenna counters with the charge that this is the defendant’s excuse for attempting to revive the abandoned contract. Complainant alleges numerous defects in defendant’s title as the cause of the delay. It appears that the parties had been negotiating with reference to this property for some weeks before the contract was eventually signed, and that Baron had had an examination of the title made prior to the preparation of the contract in order to determine whether or not McKenna was the record owner. The abstract submitted by the title company on this application was offered in evidence and it appears to be practically complete. Later, however, a more complete search and abstract was made, the final report on which reached Baron early in June. If time was not, in so many words, made of the essence of this contract, as originally prepared, the circumstances are strong that time was intended to be of the essence, and this is evidenced by the short settlement date fixed in the contract and the three short adjournments.

In Orange Society v. Konski, 94 N. J. Eq. 632 (at p. 633), Vice-Chancellor Backes said:

"The law is that a clay fixed in a contract for closing title, without more, is merely formal; but if it is stipulated that time is of the essence, or the circumstances are persuasive that that is the case, prompt performance is essential, and it is also the law that where the time fixed is regarded as a formality only, and the period has gone by, or where time is of the essence and there is a waiver, that time may nevertheless be made of the essence by formal demand that the title be closed by a given day; but the time giv'en must be reasonable.”

But it is unnecessary for me to decide here whether or not time was originally of the essence (and as I have already said, the circumstances indicating this are strong), because I think that both parties intended to make time of the essence when the last extension to June 22d was given. If I accept McKenna’s statement as to what occurred on June 11th when this extension was arranged (and I have already indicated that I do accept that statement), it was then understood by both McKenna and Reade that no further extension was to be granted and it was not as a matter of right, but as a personal favor, that Baron later asked for a further extension which was refused. Ixx my judgment time was then made of the essexice if it had not been so before, and the only question now is whether or not the time then fixed as the final date for closing was, under the circumstances, reasonable. The only matter suggested by complainant requiring additioxxal time was the clearing up of title objections and defects. Obviously, no time was required by the complainant for this purpose because it was xxot complainant’s business to clear up these objections or to remedy the defects. That was the defendant’s job. It is therefore pertinent to inquire what were the title objections required to be removed. First, outstanding certificates of tax sale, most, if not all of which McKenna had in his possession ready for cancellation at settlement; (2) the $12,000 mortgage, unacknowledged and unrecorded satisfaction piece for which McKenna had, and exhibited to Baron; (3) outstanding Herbert interest, if any. As to this it may be said that McKenna had a policy of title insurance from the Fidelity Trust Company of Newark, guaranteeing perfect title in him and on which he had a right to rely. Further than this, he had been in peaceable possession of the property for over thirty years; (4) discrepancies in property lines which complainant h’imself says were of no considerable importance. But McKenna’s testimony was that he told Baron that if any of the title objections were not satisfactorily cleared up at the settlement, sufficient of the purchase price might be withheld at settlement to cover all the uncanceled items, if necessary. This was a practical solution of the difficulties, if any existed. But I am not convinced, nor am I called upon here to decide, that there is any outstanding so-called “Herbert interest” in this property. The evidence on this point is merely that one title examiner, representing a responsible title company, out of an abundance of caution, perhaps, set up this question of outstanding interest as one of the things to be disposed of on settlement; but as against this we have the fact that another equally responsible title eompajhy has already guaranteed the defendant’s 'title.' Hnder these circumstances, and coupled with the fact that an examination of this title had been made at Baron’s request prior to the execution of the contract, report of which he had in his possession at the time, the time fixed for final closing was reasonable. The instant case is similar to that of Barry v. Ruskin, 99 N. J. Eq. 730, recently decided by me, where I held that time not originally of the essence of the contract had been subsequently made of the essence by agreement of the parties. In the instant case it is apparent that there was a complete agreement between Baron and the defendant on June 11th that June 22d was to be the final date.

■ The complainant himself had very little to do with the negotiations with respect to this contract. Correspondence and other exhibits, together with the testimony of the architect, are persuasive that complainant did not understand that the contract had been abandoned; but Baron admittedly acted .for the complainant and with his full authority. It may be that Baron thought he was taking no chances, and that Reade could buy the property later at a less price, as McKenna said Baron declared. If Baron was gambling he was playing with. Reade’s chips, and Reade must stand Baron’s losses. Both sides lay considerable stress in the argument on the letter of August 18th, 1925, addressed by complainant’s solicitor to the defendant, but this letter, as I view it, is an attempt to restore a lost cause. Considerable space is also taken up in complainant’s brief by the argument respecting defendant’s credibility as a witness. It is unnecessary for me to make any comment on this point except to say that there is ample corroboration of defendant’s testimony with respect to the vital points in this case to warrant its belief. I shall, therefore, advise a decree dismissing the bill of complaint, but as defendant has offered to return to complainant the $5,000 deposited on the execution of the contract, the decree will so- provide.


source: Caselaw Access Project

author: Berry, V. C.

license: Public Domain

text:
    Gus Gevas, trading as Essex Restaurant, complainant, v. Greek Restaurant Workers’ Club, David Stein, George Givas, John Nebas, John Louis, Speros Lakus, John Plataneote, Michael Dondos, Nick Gondocjianes, Panos Nitas, George Tejelepis, Theofore Tjelepis, Harry Gongas, Basileos Golfos, John Barogianis (first name being fictitious), Stamatios Nicholas, Athanashos Velos, Harry Gongas, John Grokaris or Gargas, Harry Congas, Louis Georges, John E. Karanasos and Costas Dritas, defendants.
    [Decided August 11th, 1926.]
    1. Picketing in labor disputes may be legal or illegal, depending upon its purpose, or the manner of its conduct, the real question being does the conduct under existing facts amount to intimidation.

      2. Where pickets paraded continuously soldier-like in front of complainant’s place of business for. a period of eighteen hours on a stretch, this gave the picketing a sinister aspect, irrespective of whether or not threats by word of mouth were made, or acts of violence indulged in. This constant parading was intimidating in itself.
    3. Where to the picketing were added threats of physical violence, dogging, and persistence in the acts of -the defendants against the will of the complainants and his employes is shown, such picketing is unlawful.
    4. Picketing, the object of which is unlawful, irrespective of its militant or intimidating character, may be restrained whether peaceable in fact, or not, and it is clear that the acts of the defendants constitute an unlawful interference with the complainant’s business and cannot be justified under our decisions.
    5. The act of P. L. 1-926 oh. 201, has no application to the present controversy, as no strike, in fact, exists, and the acts of the defendants complained of are in furtherance of a wrongful and illegal purpose.
    On bill for injunction. On return of rule to show cause.

      Mr. Pearce B. Franklin, for the complainant.

      Mr. John L. Hughes, for the defendants.
   Berry, V. C.

This bill is filed to obtain an injunction against the Greek Restaurant Workers’ Club and certain individuals, some of whom are members of that organization, restraining them from unlawfully interfering with complainant’s business, intimidating the complainant’s employes, loitering and picketing upon the street in front of - complainant’s restaurant, and generally from hindering o-r interfering with or obstructing complainant’s business, either by -inducing or attempting .to induce or compelling by threats, intimidation, force or violence, any of complainant’s employes to leave his-service, or otherwise, or by interfering with the customers’ peaceful patronage of that restaurant. The complainant conducts- the Essex Restaurant at 919 Broad streetj Newark, New Jersey, and has done so for six years last past. He has.built up a substantial business there, the average annual gross receipts of which amount to $100,000. He employs sixteen persons, including cooks, waitresses, &c. The defendants are the .Greek Restaurant Workers’ Club, sometimes known as "The Lunch Room-Cafeteria-Delicatessen Workers’ Club”; David Stein, an organizer and representative of the American Federation of Labor; Costas Dritsas, a member of the executive committee of the Greek Restaurant Workers’ Club, and twenty other persons who are either members of said club or were participants in the acts complained of in the bill.

I' deem it important, as having a direct beaming on the activities of the defendant club which are here complained of, to now say that in April of this year seven other cases in which bills had been filed in this court, by proprietors of Greek restaurants in and near Newark, against exactly the same defendants as are here named, and in which the acts complained of were of exactly the same, character, came before me in the same manner as the instant case. In six of these cases, after hearing on return of the orders to show cause, I advised preliminary injunctions, denying an injunction in the seventh because, of lack of proof.

The bill alleges that no strike exists in complainant’s restaurant ; that there has not been any strike in that establishment; that no employes had been discharged or left complainant’s employ during the month preceding the filing of the bill; that none of the present employes of complainant are members of the defendant club; that.prior to the acts complained of in the bill representatives of this club called on the complainant’s employes and demanded that they join this club on pain of physical, violence; that on July 9th, 1926, a representative of the defendant club called on the complainant and tried to induce him to sign an agreement which, provided that complainant would not employ anyone in his business not a member of the defendant club; that he declined to do.so; that immediately-thereafter, members of the club appeared in front of the complainant’s restaurant with placards on their breasts and backs on which were printed in bold type the following words: "Strike — the ■workers at Essex Lunch are on strike; we are striking to reduce our hours from twelve to ten and one day off a week;” that these men began parading back and forth on the sidewalks in front of the restaurant and so close to the entrance thereof as to interfere - with the ingress and egress of the patrons; that the defendants have threatened physical violence against the complainant’s employes if they continue to work for complainant and do not strike; the elbowing of patrons, frightening'and intimidating them and threats of physical violence against them, and the use of indecent and abusive language; that all of complainant’s employes are satisfied with the conditions of their employment, have made no complaint, are not desirous of quitting their employment and do not want to strike.

I think it can be fairly stated that substantially all of the material allegations of the bill are amply supported by complainant’s affidavits. On one occasion complainant was obliged to transport two of his employes to their homes by automobile to avoid physical violence with which they had been threatened by some of the defendants, and at least one patron of complainant’s restaurant has been assaulted by one of the pickets. At six forty-five a. m. on July 10th, 1936, one of the complainant’s employes, while on his way to work, was met at Lincoln Park by several of the leaders of the defendant club and threatened with physical violence in the event that he did not quit his job. Complainant’s affidavits show that as high as thirty or forty members of the defendant club or its sympathizers have been in front of complainant’s restaurant at one time and have remained there for a period of six hours, assisting as they could in the demonstration which was there being staged. Defendants’ affidavits deny this statement and claim that there were never more than two members of defendant club on picket duty in front of the restaurant at one time. An analysis of the affidavits, however, leads me to the conclusion that while, there may have been but two members of the defendant club who wore the placards which are here objected to in front of the restaurant at any one time, there were at least four of the defendants, including the defendants Stein and Dritsas, continuously before the restaurant during all the period of picketing complained of with the exception of a few hours around midnight on July 10th. Stein and Dritsas admit that they were present during most of the picketing period, directing the activities of the pickets. Defendants submit the affidavit of one other labor organizer in support of their claim that no violence or intimidation was practiced by the pickets, and she incidentally states that she was present also during a portion of the time of the picketing operation. I am convinced that the number of members of this club and pickets was much larger than the defendants admit, although it may be that many of the persons congregating before complainant’s restaurant were merely onlookers, making up the inevitable crowd that collects on occasions of this kind.

It clearly appears, also, that there is no strike of the employes of complainant’s restaurant. It is true that many of the affidavits submitted on behalf of the defendants claim that a “walkout” occurred on July 9th, but a careful anatysis of these affidavits discloses the fact that only four of complainant’s employes, namely, Yergos, Papaines, Agapitos and T. Gevas, left at that time. It is also true that Agapitos says that ten men walked out, but he does not mention their names and no other affiant makes any such claim, and as against this statement there are the affidavits of four employes of complainant and of the complainant himself to the effect that no walkout occurred and that only one man had left the employ of complainant within one week prior to July 10th. The complainant’s proof on this point is conclusive.

Defendants also claim that on July 6th, 1926, the defendant club received a written request from some of the employes of complainant, complaining of their treatment by their employer and seeking the support of the defendant club in calling a strike, if necessary, to obtain compliance with their demands; that the basis of this complaint was that the em-pl<wes were required to work twelve hours a day for seven days a week, and that they wanted these hours reduced to ten, and one day off a week. Complainant insists, however, that all of his employes, except two night men, worked nine and twelve hours a day on alternate days for six days a week, and that the average work day was ten and a half hours. The letter referred to is attached to the affidavit of the defendant Stein, and is written on the letter-head of the Lnnch RooinCafeteria-Delicatessen Workers’ Club. The following is an exact copy of the letter :

“Lunch Room — Cafeteria—Delicatessen Workers’ Club
Reliable Cooks, Waiters and all kinds of Kitchen Help for all occasions at short notice.
262-4 Washington Street, Newark, N. J.
July 6/26......192
To the Executive Board
Lunchroom Cafeteria Delicatessen Workers,
Dear Sir and Brothers.
' We, the men working at the Essex Restaurant on Broad St. Newark, N. J. do hereby petition you to take action, by declaring a strike if necessary in order that the conditions as our contracts call for, mainly six days a week work and ten hours per day and reconiztion of our organization be lived up to by the proprietor. Fraternally yours,
Nick E. Veegos
Gustav Kraus
James Stavropoulos
John Doe (Signature illegible)
Eestathios Eestathiadis
Peter Papaines.”

It will be noted that this letter is dated July 6th, and that it bears six signatures, purporting to be the signatures of employes of complainant. A careful examination of defendants’ affidavits, however, discloses the fact that of these six, only two were employes of the. complainant on the date of that letter. Two others, namely, Stavropoulos and Efstathiadis, had been in complainant’s employ hut had left of tlieir own accord. Stavropoulos left on July 1st. He is a member of the defendant club and complains that he was discharged by complainant because of that fact. This is denied by complainant. This, however, is immaterial, the fact remaining that his employment was terminated six days before the letter was written. Efstathiadis voluntarily left complainant’s employ on June 19th. According to his own affidavit, he quit because the complainant would not give him a night off when he asked for it. The other two men whose signatures are appended to the letter do not appear to have had any connection whatever with complainant’s restaurant. The statement, therefore, in defendants’ affidavits that the various conferences which were held with the complainant in an effort to have him reduce, as they say, the hours of labor of his employes, were in response to the request contained in this letter, is false. It affirmatively appears from affidavits submitted by the defendants, and also by the eomplainant’s affidavits, that for a period of three or four months prior to July 9th representatives of the defendant club had been importuning the complainant to reduce the working hours of his employes, as defendants say, but, according to the complainant, in an effort to induce him to unionize his place of business and to make it a “closed” instead of an “open shop.” I have no doubt that the claim of the complainant is entirely correct, and my conclusion on this point is based upon not only what appears in this case, which is amply sufficient, but also upon the*facts brought to my attention in the seven other bills of complaint filed against these same defendants, and to which reference has already been made. I cannot now divorce my mind of the knowledge of the activities of the defendants gained at the 'hearings in those cases, all of which are a matter of record in the files of this court. The date given as the commencement of the negotiations between representatives of the defendant club and the complainant corresponds exactly with the period of the activities of that club which were complained of in these seven other cases. It is therefore apparent to me that the demonstration against the complainant’s restaurant was merely part of a general plan to unionize all of the Greek restaurants in Newark and vicinity. This, in fact, appears affirmatively in the affidavit of the defendant Stein. It is also confirmed by the above-quoted letter which speaks of "reconiztion of our organization.” The facts in this case are substantially the same as those shown in the other six cases in which injunctions were advised, the only difference being that there is perhaps a little less of threatening by word of mouth and less violence here, due, in my judgment, to the fact that prompter application for relief was made to this court in the instant case than in the former cases. The defendants vigorously deny any acts of violence and allege that their picketing has been conducted in a peaceable manner without molestation of either employes or patrons of complainant’s restaurant. Defendants’ own affidavits show, however, that the picketing was continued from six A. M. until one A. M. of the following day, during the period in which it was carried on, and until stopped by the restraining order of this court. These affidavits show that the pickets paraded up and down continuously in front of the complainant’s restaurant wearing the placards/referred to. Defendants claim that the pickets have not even spoken to the emplojns in complainant’s restaurant, and they claim that the picketing is a peaceful, persuasive measure orjly. But if, as defendants say, the pickets have not communicated with any of complainant’s employes, I anj at a loss to understand the object or purpose of this picketing unless it is the coercion, by intimidation, of the complainant and his employes into a recognition of the union, coupled, perhaps, with the idea of boycotting the complainant ani injuring him in the conduct of his business, by inducing complainant’s patrons to withdraw their patronage. No other purpose could possibly be advanced for a continuous parade of pickets, although only two in number, in front of complainant’s restaurant for a period of eighteen hours at a stretch. Defendants’ affidavits show that there were eight of these pickets working in relays. Complainant alleges that a continuance of the activities of the defendants complained of will irreparably injure his business, and this is obviously so. The defendants claim that their actions are entirely peaceful and that they are therefore within their legal rights, citing, in support of this contention, numerous decisions of the courts of this and other states and of the United States supreme court, among which may be mentioned Keuffel & Esser v. International Association of Machinists, 93 N. J. Eq. 429; Forstmann & Huffman Co. v. United Front, &c., Committee, &c., 99 N. J. Eq. 230, and American Steel Foundries v. Tri-City General Trades Council, 257 U. S. 184; 66 L. Ed. 189. They further contend that ev'en if the activities of defendants were not permissible under the cases cited, they have now been legalized by thé legislature of this state) and cite P. L. 1926, p. 348 ch. 207, in support of this contention-. That act is entitled, “An act relating to disputes concerning terms or conditidns of employment, the communicating of information and limiting the issue ‘of restraining orders and injunctions in certain fases.”

In the view I take of this issue, the first point tó he determined is whether or not the picketing and other acts complained of are shell as can be justified under our decisions irrespective of tire statute referred to; and second, if not, whéther that statute is applicable and they can be justified under its provisions.

It has long been recognized in this state that picketing in labor disputes may be legal or illegal depending upon its purpose or the manner of its conduct,, the question of the legality or illegality being one of fact t<3 be determined according to the circumstances of each particular case. Fletcher Co. v. International Association of Machinists, 55 Atl. Rep. 1077; Frank & Dugan v. Herold, 63 N. J. Eq. 443; Jonas Glass Co. v. Glass Bottle Blowers’ Assn., 72 N. J. Eq. 653; affirmed, 77 N. J. Eq. 219; Keuffel & Esser v. International Association of Machinists, supra; Forstmann & Huffman Co. v. United, &c., Workers, supra, although in Baldwin Lumber Co. v. International Brotherhood, &c., 91 N. J. Eq. 241, Vice-Chancellor Foster held that “peaceful picketing engaged in for the purpose of persuasion, regardless of whether the persuasion was addressed to present or prospective employes of complainant would be enjoined. The Baldwin Case was decided in 1920, prior to the decision of the United States supreme court in American Steel Foundries v. Tri-City G. T. Council, supra, which was debided in 1922. In the TriOil,y Case, it is said that Chief-Justice Taft held that peaceful (?) picketing was lawful. This decision was followed by the Keuffel & Ksser Case, decided by our court of errors and appeals in January, 1922. That court, in commenting on the Tri-City Case, said:

“It decided that the employer had the right to the access of his employes to his place of business and egress therefrom without intimidation or obstruction, and the employes recent or expectant had the right to use peaceable and lawful means to induce present employes and would-be employes to join their ranks. The legality of any particular conduct depends on the facts of the particular case. 'Picketing may or may not be lawful, depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy [to which we add, ‘if he has ordinary firmness of mind5], dr an immediate tendency to obstruct free passage such its the streets afford, consistent with the right of others to enjoy the same privilege. Thus, men may accost one another with a view of influencing action but may not resort to persistent importunity, following and dogging. The number of pickets may of itself make the picketing unlawful, since it may amount to intimidation. Every one knows that threats of bodily harm may be made by a mere show of force without violence of language or breach of the peace, and that mere numbers may intimidate. Thé real question is, Does the conduct under existing facts’ amount to intimidation ?55

The results of these decisions are tersely summed up by Vice-Chancellor Bentley in Forstmann & Huffman Co. v. United, &c., Workers, supra, as follows:

“Under these opinions, I take it, picketing in itself, for all its militant name, may be legal or illegal in a dispute between employer and employe, according to the manner in which it is carried on.” ” And further: “If, however, this privilege is abused by violence, persistence against the other’s wish, annoyance or otherwise, then the employer is entitled to have the striker enjoined from such illegal practice. This shows that it is the opinion of the supreme court of the United States and of the court of errors and appeals of this state that picketing, as such, may not amount to a trespass upon another’s rights.”

The United States supreme court’s own idea of what was decided in the Tri-City Case with respect to picketing is best stated by the distinguished chief-justice who wrote that opinion, and who also wrote the opinion in Truex v. Corrigan, 257 U. S. 312 (at p. 340); 66 L. Ed. 254 (at p. 266), as follows:

“We held that under these clauses picketing was unlawful, and that it might be enjoined as such, and that peaceful picketing was a contrMiction in terms, which the statute sedulously avoided, but that, subject to the primary right of the employer and his employes and would-be employes to free access to his premises without obstruction by violence, intimidation, annoyance, importunity or dogging, it was lawful for ex-employes on a strike and their fellows in a labor1 union to have a single representative at each entrance to the plant of the employer to announce the strike and peaceably to persuade the employes and- would-be employes to join them in it. We held that these clauses were merely declaratory of what had always been the law and the best practice in equity, and we thus applied them.” (Italics are mine.)

Obviously, the line of demarcation between peaceful picketing, if there is any such thing, and that which is threatening, intimidating or coercive, is so finely drawn as to be almost imperceptible. While the great weight of authority is to the effect that “peaceful picketing” for a lawful purpose is legal, I have found no case in which the term has been so defined that it may be universally applied. The nearest to such definition is the following language by Chief-Justice Taft in the Tri-City Case, supra:

“We are a social people, and the accosting by one of another in an inoffensive way, and an offer by one to communicate and discuss information with a view to influencing the other’s action, are not regarded as agression or a violation of that other’s rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free, and his employer has a right to have him free.

“The nearer this importunate intercepting of employes or would-be employes is to the place of business, the greater the obstruction and interference with the business, and especially with the property right of access of the employer. Attempted discussion and argument of this kind in such proximity is certain to attract attention and congregation of the curious, or it may be, interested bystanders, and thus to increase the obstruction as well as the aspect of intimidation which the situation quickly assumes.”

As the supreme court in the Tri-City Case cited Frank v. Herold, supra, among other authorities, in support of the decision in that case, it may be inferred that it approved of the language of Vice-Chancellor Pitney in that case, in which he elaborated upon the right of one to accost another on the public highway or elsewhere, and impart or obtain information or present arguments on a given subject. This distinguished jurist’s admirable and lucid resumé of the reciprocal rights of man in disputes of this kind has been frequently cited with approval by the courts of this and other jurisdictions, and I know of no ease in this state where his language has been disapproved. I heartily concur in what he there said.

There is respectable authority to the effect that “there is and can be no such thing as peaceable picketing any more than there can be chaste vulgarity, or peaceful mobbing or lawful lynching” (Atchison, Topeka and Sante Fe Railway Co. v. Gee, 139 Fed. Rep. 582), and as the highest court in the land has held that “peaceful picketing” is a. “contradiction in terms” (per Chief-Justice Taft, in Truex v. Corrigan, supra), this statement would seem to have ample support. However, even in our own state “picketing in its mildest form” is said to be “a nuisance.” Jonas Glass Co. v. Glass Bottle Blowers’ Association, supra. Nor have I been able to find any reported New Jersey case where picketing has been the subject of the complaint and where an injunction has not issued. Whether or not this is because the statement of the court in Atchison, Topeka & Sante Fe Railway Co. v. Gee, supra, is correct, is not necessary for me to suggest. But in determining whether picketing in a given cause is or is not peaceable, “the real question is, Does the conduct under existing facts amount to intimidation ?” Keuffel & Esser v. International Association, &c., supra. Picketing has been said to be “a pretense for persuasion, but is intended for-intimidation,” and that while neither intimidation nor fraud can be defined “every person knows whether his acts- are fraudulent and he also knows whether his acts are intimidating.” Union Pacific R. Co. v. Ruef, 120 Fed. Rep. 102. It is obvious, however, that intimidation does not necessarily depend upon numbers, and numbers are always comparative. In the Keuffel & Esser Case, Mr. Justice Swayze said that “twenty-five or fifty pickets might he intimidating where a single picket probably would not;” but the reverse may also be true. Where the massing o-f twenty-five or fifty pickets might not intimidate the employer or employes of a plant employing thousands of workers, two or three, or even one, might be intimidating where the number of employes is small, as here. Harvey v. Chapman, 226 Mass. 191; 115 N. E. Rep. 304. Nor is it 'necessary that-the’picket or pickets intimidate by word of mouth or by actual physical violence. Barr v. Essex Trades Council, 53 N. J. Eq. 101; Keuffel & Esser v. International Assn., supra. Eestraint of the mind is just as potent as a threat of physical violence. Webb. v. Cooks’ and Waiters’ Union (Texas Civil Appeals), 205 S. W. Rep. 465. A single sentinel) constantly parading in front of a place of employment for any extended length of time may be just as effective in striking terror to the souls of the employes, bound there by their duty, as was the swinging pendulum in Poe’s famous story “The Pit and the Pendulum” to the victim chained in its ultimate path. In fact, silence is sometimes more striking and impressive than the loud mouthings of the mob. It is the show of force back of the demonstration, or the inevitableness of the impending disaster, which tries men’s souls and drives them to desperation. It is admitted that back of the present demonstration is the full force and power of the American Federation of Labor, of which the pickets are mere sentinels or scouts. In Gompers v. Bucks Stove and Range Co., 221 U. S. 418, 439; 55 L. Ed. 797, 805; 34 L. R. A. (N. S.) 874, the court said:

“But the very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot *be ■ met, except by his prrrchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected 'by the constitution, or by standing on such rights and appealing to the preventive powers of a court of equity. When such appeal is made, it is the duty of the government to protect the one against the many as well as the many against the one.”

With the knowledge of this force back of the movement, one picket may well - strike terror to the employer or his small band of employes. The fact that the pickets in this case paraded 'continuortsly, soldier-like, in front of the complainant’s place of business, for a period of eighteen ho-urs at a stretch, gave this picketing a sinister aspect, irrespective of whether or not threats by word of mouth were made, or acts of violence indulged in. Coupled with the fact that the pickets remained silent,- as is-alleged by the defendants, and communicated with no one, this constant parading was intimidating in itself.

But the proof here goes further. Threats of physical violence, clogging, and persistence in the acts of the defendants against the will oí the complainant and his employes is shown. These are especially mentioned as inhibited in the Tri-City and in the Keuffel & Esser Cases; but aside from this, what is the object of the acts complained of? Is the picketing pursued in quest of information? Obviously not, as the defendants say the pickets communicated with no one. Whatever information is available to the eye is just as available sans pickets and placards. I have already said that the apparent purpose of the defendants was to unionize the Greek restaurants in Newark and vicinity, of which the complainant’s restaurant is one, and this against the will of both employer and employes. The instant case is only part and parcel of the general plan. The demands of the defendant club, the union, are that the restaurant proprietors employ only club members and pay them wages and fix hours of work to be determined by the club. There is here no real dispute between employes and employer concerning the terms or conditions of the employment, nor are the defendants acting in behalf of dissatisfied and complaining employes. The letter addressed to the defendant club and purporting to be signed by six of the complainant’s employes was a subterfuge, designed merely to afford a colorable pretense for the application of the recent statute of our legislature. But it has been well said that “the law is not to be hoodwinked by colorable pretenses; it looks at truth and reality through whatever disguise it may assume.” Commonwealth v. Hunt, 4 Mt. (Mass.) 111; 38 Am. Dec. 346. And in Earle v. American Sugar Refining Co., 74 N. J. Eq. 751 (at p. 761), Vice-Chancellor (now Chancellor) Walker said: “A court of equity * * * penetrates all disguises of form, and, disregarding the shadow, grasps the substance.”

The date of that letter, but two days after the act became effective, is significant; but the defendants themselves admit negotiations with complainants months before the date of the letter, and these negotiations were all directed, as is the picketing directed, to the unionizing of the whole Greek restaurant business in this vicinity, and of this complainant’s restaurant in particular. It should he borne in mind that there is no strike in the complainant’s place of business, and that his employes axe not members of the defendant club. True, the defendants have attempted to call a strike, but they have been unsuccessful, and in this attempt they have support neither in law nor in reason. That employes may strike of their own volition does not justify the conduct of members of a labor organization, to which such employes do not belong, in instigating a strike. Ruddy v. United Assn., 79 N. J. Law 467; Eagle Glass Co. v. Rowe, 245 U. S. 275; 62 L. Ed. 286; Hitchmm Coal Co, v. Mitchell, 245 U. S. 229; 62 L. Ed. 260; W. F. Snow Iron Works v. Chadwick, 227 Mass. 382; 116 N. E. Rep. 801; Note 6 A. L. R. 918; Harvey v. Chapman, 226 Mass. 191; 115 N. E. Rep. 304.

Picketing, the object of which is unlawful, irrespective of its militant or intimidating character, may be restrained wdiether peaceable in fact or not. Even peaceful acts, if unlawful and resulting in irreparable injury, may be enjoined.

It, of course, appears that the four employes of the complainant who exercised their right to quit his employment on July 9th, were members of the defendant club; but even admitting, for the purpose of argument, that there were four of complainant’s employes who quit on July 9th, which, as I have stated before, is not sufficiently supported by the answering affidavits, and is denied by the complainant, it seems to me that this is merely proof of the suggested plan of these defendants to accomplish an illegal object by the process which has been graphically described as “boring from within” (note 26 A. L. R. 158), examples of which are shown in Cyrus Currier & Sons v. International Molders’ Union, 93 N. J. Eq. 61, and Hitchman Coal Co. v. Mitchell, supra. In the latter case, Mr. Justice Pitney, speaking for the Hnited States supreme court, said:

“This court repeatedly has held that the employer is as free to make non-membership in a. union a condition of employment as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power.”

The instant case is similar in principle and facts to Harvey v. Chapman, supra, where the union was restrained from maintaining a single picket in front of complainant’s store, and where it was found that no strike existed and that the statements used on the placards were false, and that the parading and picketing and boycotting was designed merely to compel complainant to discharge employes who had refused to pay union dues.

It is clear that the acts of the defendant complained of constitute an unlawful interference with complainant’s business, and cannot be justified under our decisions, and should be restrained unless justifiable -under P. L. 1926 eh. 207. That act became effective on July 4th, 1926, and so far as pertinent to this issue reads as follows:

“No restraining order or writ of injunction shall be granted or issued out of any court of this state in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining -any person or persons, either singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or 'from peaceably and without threats or intimidation recommending, advising or persuading others so to do; or from peaceably and without threats or intimidation being upon any public street or highway or thoroughfare for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or-abstain from working, or to employ or to cease to employ, any party to a labor dispute, or to peaceably and without threats or intimidation recommend,' advise or persuade others so to- do, provided said persons remain separated one from the other at intervals of ten paces or more.”

It is contended 'by the complainant that this act is unconstitutional and that, therefore, the acts of the defendants cannot be justified thereunder. -But before considering that question it must first be determined that that act, assuming its constitutionality, is applicable to the present controversy. If not, then the constitutional question is not in issue and cannot be passed upon here. Legislation of this kind has generally been held to be declaratory of, and not as changing, the laws theretofore in force. Note, 27 A. L. R. 360, 413. Accordingly, such statutes do not render lawful any act or acts which were unlawful at the time the statutes were enacted, and the existence of a dispute is a condition of the immunity to injunction declared by the statute; nor is it enough that such a controversy formerly existed where the employer has been successful in filling the places of the strikers. Quinlivan y. Dail-Overland Co., 274 Fed. Rep. 56; note, 27 A. L. B. kl5. Such statutes have also been held not to apply in the case of strikes for a wrongful purpose. Ibid. I have already held that here no strike, in fact, exists, and that the acts of the defendants complained of are in furtherance of a wrongful and illegal purpose. This statute, therefore, has no application to the present controversy, the constitutionality of the act is not involved, and a consideration of that question is unnecessary.

It is argued that no preliminary injunction should issue in this case because the allegations of the biE and the accompanying affidavits are met by a full and complete denial in the affidavits of the defense. This objection is completely answered by Vice-Chancellor Bentley in the Forstmann & Huffman Co. Case, supra.

It is also urged that irrespective of the application of P. L. 1926 ch. 207, the defendants are entitled to a substantial modification of the restraint already imposed in the order to show cause, and motion to that end was made by counsel for the defendant on the return of the order. This motion is denied. This being, as I view it, a ease of unlawful interference with a lawful business lawfully conducted, the restraint originally advised is none too sweeping in its scope and effect.

I will advise a decree in accordance with these conclusions.


text:
    Amalia R. Gluck and her husband, Maurice B. Gluck, as such, complainants, v. Rynda Development Company, a New Jersey corporation; Abraham Hauptman, Jacob Hauptman, J. Lewis Fiacre; Franklin Society for Home Building and Savings, a New York Corporation; Frank Hancock Hennessy; Arlington Realty Company, a New Jersey corporation, and Dime Savings Bank, a New Jersey corporation, defendants.
    [Decided July 22d, 1926.]
    1. He who comes into equity for relief must not only enter with ■clean hands, but must keep his hands clean after his entry, and until the final determination of the issue.
    • 2. Evidence examined, - and held, that the complainant’s conduct falls far short of the equitable requirements warranting the exercise of the extraordinary powers of this court in their 'behalf, as it is baldly apparent that not only did the complainants not come into this court with clean.hands, but they have not kept them unsoiled since their entry, and attempted to appropriate to themselves 'by iorce and arms rights which they claimed and which were incidentally here in controversy.
    3. 9?his court has jurisdiction to maintain the status■ quo during the pendency of, any suit properly before it, and though the right to possession of lands is a legal right, enforceable only in a court of law, it is unconscionable in' the complainants to now attempt to assert this, as they themselves have sought relief in this court, • and thereby submitted themselves, and this controversy in all its phases to the jurisdiction of this court, and it does not lie in their mouths to deny the court’s right to dispense justice to all'parties involved. .
    On bill, &e.

      Mr. Michael J. Tansey, for the complainants.

      Mr. Jacob Hauptman, for Rynda Development Company, Abraham Hauptman, Jacob Hauptman, J. Lewis Fiacre.

      Mr. Samuel D. Williams, for Dime Savings Bank.

      Mr. Thomas F. Fitzsimmons, for Arlington Realty Company.

      Mr. Frank Hancock Hennessy (of the New York bar), for the Eranklin Society for Home Building and Savings, and pro se.

   Berry, V. C.

(orally).

I will dispose of this matter now. I have allowed the fullest latitude in the trial of this cause, because I thought it best to have a complete record of the whole transaction, so that there will be no question hereafter as to the basis of this decision.

This bill seeks the specific performance of a contract for the sale of land, entered into between the defendant Rynda Development Company as vendor and Chemtec Company as vendee. The complainant Amalia R. Gluck is the assignee of the Chemtec Company. The complainant Maurice B. Gluck is her husband, and, I believe, the real party in interest. The agreement was dated May 1st, 1933, and provided for the sale and purchase of a lot of land sixty feet in front by one hundred and forty feet in depth, located at South Orange, New Jersey, known and designated as lot 31 on map of Rynda Development Company. The purchase price of the lot was $3,340, of which $160 in cash was paid on the date of the agreement and the contract provided for the payment of $780 in cash on the day of settlement and the balance of $1,400 by the execution and delivery to the Rynda Development Company of a mortgage, payable one-third in one year and the balance at the end of the second year, together with interest at six per cent., and which mortgage was to be subject to a proposed first mortgage in an amount not exceeding eighty per cent, of the cost of a house to be erected on the lot. It was stipulated in the agreement that the purchaser was to be let into possession for the purpose of constructing a dwelling. The date fixed for final settlement under the contract was August 1st, 1933, but the date of settlement was continued from time to time until some time in December, 1933. The exact date to which it was continued is a little uncertain, as neither party agrees to the particular date on which settlement was to be finally had, but as I look at this case it does not make much difference whether it was December 31st or December 36th.

The complainant Maurice B. Gluck was the president of Chemtec Company, the vendee under the agreement of sale. The Chemtec Company entered into possession and began the construction of a building, but became financially involved; mechanics’ lien suits were instituted and prosecuted to final judgment, and the defendant Arlington Realty Company became'the purchaser of the property at sheriff’s sale held under an execution issued on the mechanics’ lien judgment, and received a deed from the sheriff of Essex county. The complainants allege tender of performance by them and refusal of the defendant Rynda Development Company to perform. Complainants also allege the delivery of a deed by the defendant Rynda Development Company to them, redelivery by the complainants to this defendant and unlawful retention of that deed by this defendant. Some phases of this controversy havte already been before this court in at least two suits in which three opinions were filed by Vice-Chancellor Bacbes. The files in these cases have been produced here in court to-day and are, respectively, docket 54, page 565, and docket 56, page 535, and some phase of this matter has also been before the Essex county circuit court in various mechanics’ lien suits, and in particular one brought by the complainant Maurice B. Gluck against the complainant Amelia R. Gluck, the defendant Rynda Development Company and others, and which suit was dismissed by Judge Dungan for failure to prosecute within the year. This judgment was affirmed by the court of errors and appeals on Judge Dungan’s opinion in May of last year, and the report of that case will be found in 8 N. J. Adv. B. 997.

The purchase price stipulated in the agreement Was never paid by the vendee or its assignee. The only payments on account of the purchase price shown to have been made are the payment of $160 on the execution of the contract and the payment of $400 by the Chemtec Company by virtue of an assignment of certain other contracts by that company to the defendant Rynda Development Company, and for which this defendant gave the Chemtec Company a credit of that amount. Complainant Gluck contends that the $1,400 mortgage referred to was executed and tendered with the purchase price of $780 in cash, and that that 'tender was made to the Rynda Development Company on or about November 25th. This is denied by the Rynda Development Company’s officers. I find as a fact that no such tender was ever made. The reasons for my finding against Mr. Gluck on this point will appear later.

Some time in November, 1922, the complainants had arranged for a loan from the defendant Eranklin Society for Home Building and Savings, with the proceeds of which it was intended to complete the purchase of the lot in question and also to complete the buildings. In order to facilitate the consummation of this loan and the settlement, the defendant Rynda Development Company delivered to the defendant Hennessey, in escrow, a deed for the lot in question, duly executed by the Rynda Development Company, which was to have been delivered to the complainant Amalia R. Gluck only upon completion of the whole transaction and the payment of the balance of the purchase price according to the terms of the agreement. By subterfuge, the complainant Maurice B. Gluck obtained possession of this deed from a representative of the defendant Rynda Development Company, to whom it was entrusted for delivery to Mr. Hennessey, had a photostatic copy thereof made and then returned the deed to this representative or induced the representative to have a copy made himself; but in the view I take of the matter, it does not make any difference; in the legal effect, which of these statements is true. Some time thereafter the complainants executed to one Frieda Horn, a sister of Mr. Gluck, a mortgage on the premises in question for $850, and attached this photostatic copy of the deed to the mortgage and recorded the mortgage with the copy of the deed attached in the office of the Essex county register of deeds. And prior to this, Mr. Glnck had attempted to have the photostatic copy recorded as a deed, but this was refused by the register of deeds and Gluck left the register’s office vowing that he would get the copy of the deed on record in spite of such refusal. The arrangement with the defendant Eranklin company, whereby the complainant Amelia E. Gluck was to obtain a loan from that company, was never consummated, and the deed which had been delivered to Mr. Hennessey, in escrow, was returned to the Eynda Development company and destroyed. The mechanics’ lien suit and sheriff’s sale, at which the defendant Arlington Eealty Company became the purchaser, followed. The Arlington Eealty Company entered into possession of the premises over the protest of Mrs. Gluck, completed the building and thereafter executed a mortgage for $8,000 to the defendant Dime Savings Institution. The Arlington company then filed its bill to quiet title to the land. This bill was dismissed when it appeared at the trial that the complainant was not in peaceable possession, its possession being disputed by Mrs. Gluck, and actual peaceable possession being the jurisdictional requirement of the statute. It was held in that suit, however, that the deed, photostatic copy of which was made and recorded by the complainant Maurice B. Gluck, was never delivered, and that the copy was a fraud. The bill was dismissed without prejudice, with leave to the complainants to present a properly drawn bill charging that the Glucks claimed title under the deed, the photostatie copy of which was on record, and that that record constituted a cloud on the title, and praying that the original and photostatic copy of the deed be declared null and void, and indicating that under such circumstances relief would be granted. Subsequently, the Arlington Eealty Company did file such a bill, but it also was dismissed, because in that suit it was shown from the record of the mechanics’ lien suit that the issuing of the summons was not endorsed on the lien claim as the statute requires, and, consequently, the lien was discharged; and as the judgment was, therefore, a nullity, no title passed by the sheriff’s deed. ' In that suit Vice-Chancellor Backes, in reciting the facts found by him, said:

“In the meanwhile the Chemtee Company transferred its contract to Amalia R. Gluck and the Rynda Development Company arranged to convey the land to her. Mrs. Gluck negotiated with a New York concern for a mortgage; the time was fixed for the passing of the title at the office of the lender’s attorney in New York, and the deed was left with the attorney to be delivered on payment of the balance of the purchase-money. The mortgage loan was not affected, the purchase price was not paid, and the deed was surrendered by the attorney to the Rynda company. Before delivering the deed to the New York attorney, Maurice B. Gluck, Mrs. Gluck’s husband, a New York lawyer, who represented her in all the transactions, persuaded the representative of the Rynda company to permit him to have a photostatic copy of it made, upon the representation that it would be a protection against the New York attorney. Gluck then had his wife execute a mortgage to one Erieda Horn and annexed to it the photostatic copy of the deed and recorded it in the Essex county clerk’s office. The Glucks made the claim that the deed was delivered, but that is false.”

Eollowing this decision the Rynda Development Company conveyed all of its interest in the lot in question to the Arlington Realty Company, by deed dated October 29th, 1925, and acknowledged December 2d, 1925, and recorded on December 7th, 1925. It also now appears that the Arlington company, on January 15th, 1924, received another deed for that property from the sheriff of Essex county under another mechanics’ lien judgment. This deed was not recorded until March 11th, 1926. No reason is assigned for the delay in recording this deed. The validity of this deed is now attacked by the complainants because of alleged defects in that mechanics’ lien proceeding. It is unnecessary, however, to decide this question now in the view I take of the matter, and also because the Arlington company now has a deed from the Rynda Development Company, in which company rested the legal title if the sheriff’s deed did not convey it. Complainants have made defendants in this action the Rynda Development Company, because of its contract; Abraham Hauptman, Jacob Hauptman and J. Lewis Eiacre, who are officers of that company, on the theory that they were conspiring to deprive Mrs. Gluck of her deed; the Arlington Realty Company, because of its record title, and the Dime Savings Institution, on the theory that its mortgage was taken with notice of the complainants’ claims, and is, therefore, subject thereto. The Rynda company, while admitting the agreement and possession of Chemtec Company for a time and partial completion of the building, denied the tender of complainants to perform, denied delivery of the deed and alleged complainants’ complete failure to comply with the terms of the agreement of sale. The defendant Arlington Realty Company denies all the material allegations of complainants’ bill so far as applied to that defendant and filed a counter-claim against the complainants alleging that the complainants obtained possession of the deed from the Rynda company by fraud, had a photostatic copy thereof made, which was annexed to the Erieda Horn mortgage and recorded, and that this mortgage was without consideration and void, and that the mortgage and deed constituted a cloud on this defendant’s title, and asks that they both be declared null and void and canceled on the record. Issue on this counter-claim is joined by-both the complainants and Erieda Horn. The defendant Dime Savings Institution denies all knowledge of the equities between the complainants and other parties and claims priority on its $8,000 mortgage. Defendants Eranldin society and Hennessey deny all pertinent allegations of the bill except that they admit the agreement for the mortgage loan, but allege failure of complainants to comply with the terms of this agreement and laches.

By reference to the opinion of Vice-Chancellor Backes in the two chancery suits above referred to; it will be seen that it has already been judicially found that the deed from the Rynda company to Mrs. Gluck, which was delivered to Mr. Hennessey in escrow, was fraudulently obtained by Mr. Gluck, and that the claim of Mr. Gluck that this deed was delivered is false. This part of the controversy is therefore res adjudicata. Mrs. Glnck obtained no rights in the premises by the recording of the photostatie copy of that deed; nor did Frieda Horn, Mrs. Gluck’s mortgagee, obtain any rights in this property by virtue of her mortgage, which are superior to the rights of the defendants. Whatever rights she had must be derived from the Glucks themselves and can rise no higher than their source.

After issue was joined in this suit the complainant served interrogatories on three of the defendants so voluminous in character as to immediately raise the question as to their propriety. On motion to strike out the interrogatories, which were two hundred and eighty-seven in number, the matter was referred to a master of this court to examine and report to the court which of the interrogatories, if any, should be stricken out. As a result of the master’s report, all of the interrogatories were stricken out with leave to the complainants to reframe them, the reframed interrogatories to include only certain interrogatories specifically mentioned by the master as of probable pertinence.

This bill was filed on December 15th, 1935. At that time the premises in question were occupied by a tenant of the Arlington Realty Company, although the right to possession of the Arlington Realty Company was disputed by the complainants. This tenancy arose by virtue of a contract of sale between the Arlington Realty Company and the tenant. Because of representations of Mr. Gluck to this tenant, the vendee under that agreement of sale, she defaulted in her payments thereunder. She suffered herself to become in default because Mr. Gluck claimed that he was the real owner of the property. Subsequently, after default, the tenant was ousted from the premises at the suit of the Arlington Realty Company because of non-payment of rent under the agreement. On the vacation of the premises by this tenant, she was interviewed by the complainant Maurice B. Gluck, who represented to her, in effect, that the Arlington Realty Company had neither right nor title to the premises. This representation was made either to Mrs. Smith, the tenant, or to her attorney, I am not just clear which, but the effect is just the same. He also represented that Mrs. Gluck was the rightful owner and was entitled to possession; and later, as a result of that conversation, and on the advice of complainants’ solicitor, they obtained the keys to the building and themselves moved into it and are now in possession. Immediately after possession was thus taken by these complainants, the Arlington Realty Company filed a petition in this cause reciting these facts and praying for a mandatory injunction removing the complainants from possession of the premises. An order to show cause was issued on this petition, and on its return answering affidavits were filed by the complainants and their counsel. The complainants then moved to strike out this petition — first, on the ground that possession was a matter of legal right, and that this court had no jurisdiction to determine the legal right to possession, and second, on the ground that the petition showed no right to equitable relief. The disposal of this order was held pending final hearing of the cause. The affidavits of the complainants and their counsel submitted on the return of this order, and the testimony of the complainant Maurice B. Gluck at this hearing, but confirm the allegations of the petition.

It appears to me from the evidence submitted in this cause that complainants were hopelessly in default under their contract of purchase, and that there is not now presented to this court a situation which would justify a decree for specific performance; but irrespective of whether or not under the evidence the vendor or the vendee is in default, and irrespective of the rights of complainants to specific performance, there are other circumstances in this suit respecting the conduct of the parties which effectually preclude the complainants from any relief in this tribunal. The complainants have sought relief in a court of equity. A court of equity is a court of conscience. The conscience of the applicant for relief in this court is always open to the scrutiny of the chancellor. One of the most wholesome and beneficent principles of a court of equity finds voice in the maxim that “he who comes into equity must come with clean hands,” and this maxim means that, not only -must one seeking equitable relief enter the portals of this court with clean hands, but he must keep them clean after his entry and until the final determination of the issue.

While both the complainant Mr. Gluck, who is an attorney of the New York bar, and his counsel here should be perfectly familiar with the elementary maxim to which I have referred, and with its application in a court of conscience, it is apparent that they are not as familiar as their calling would lead one to presume.

Mr. Tansey — I object to your honor’s statement.

Court — I don’t care if you do. It does not make any difference. You had complete knowledge of this whole affair, and on your own statement here in court to-day, you,' at least, advised and connived with Mr. Gluck to obtain these keys from Mr. Smith. I will not brook any interruption from you now. In view of this situation, I think it is quite appropriate, not only for the enlightenment of the complainant, but for the enlightenment of his counsel as well, that I should advert to certain judicial pronouncements and comments of eminent writers on equitable jurisprudence in the discussion and application of this fundamental principle. These authorities I took occasion to examine in connection with the order to show cause for a mandatory injunction already referred to, and noted them for use at this trial, and this portion of my conclusions, I may say, while orally delivered, is very much like the famous “extemporaneous” reply of Webster to Hayne, in that it was prepared in advance, and, in commenting on the law applicable to this case, I do so only after due consideration. I have carefully examined the complete file in this case and read with extreme interest the voluminous affidavits submitted by all parties. The facts which developed at the hearing to-day are not materially different from those appearing from an analysis of the pleadings and affidavits.

This doctrine of clean hands is of. ancient origin (Bentley v. Tibbals, 223 Fed. Rep. 247) and broad application. 21 Corp. Jur. 182.

In Deweese v. Reinhard, 165 U. S. 386 (41 Lawyers’ ed. 757), Mr. Justice Brewer said:

“A court of equity acts only when and as conscience com- • mands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.”

In Eaton Eq. 74, it is said:

“Equity will refuse its aid in the enforcement of a contract where the plaintiff has practiced fraud on the defendant, and also where the plaintiff has been guilty of any unconscionable conduct which does not amount to legal fraud.”

In Pom. Eq. Jur. § 898, it is said:

“Whatever may be the strictly accurate theory concerning the nature of equitable interference, the principle was established from the earliest days, that while the court of ehancery could interpose and compel a defendant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law, or even in contradiction to those rules, while it could act upon the conscience of a defendant and force him to do right and justice, it would never thus interfere on behalf of a plaintiff whose own conduct in, connection with the same matter or transaction had been uneonscientious or unjust, or marked by a want of good faith, or had violated any of the principles of equity and righteous dealing which it is the purpose of the jurisdiction to sustain. Wihile a court of equity endeavors to promote and enforce justice, good faith, uprightness, fairness and conscientiousness on the part of the parties who occupy a defensive position in judicial controversies, it no less stringently demands the same from the litigant parties who come before it as plaintiffs or actors in such controversies. This fundamental principle is expressed in the maxim ‘He who comes into a court of equity must come with clean hands.’ ”

And further, in § 404:

“It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really uneonscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very foundation is good conscience.”

In Primeau v. Granfield, 193 Fed. Rep. 911, 913 (56 Lawyers’ ed. 1267), the court said, in discussing the application of this maxim:

“The court must consider it, not because it is a matter of • defense to the defendant, but because it is against public policy to hear the case if the charge be established. The court acts for its own protection rather than for the protection of the defendant. When fraud or illegality is disclosed in a case public policy requires a court to refuse its aid irrespective of the state of the pleadings and regardless of the fact that with fraud and illegality absent the plaintiff might appear entitled to relief.”

In Howtz v. Hellman, 228 Mo. 655, 671; 128 S. W. Rep. 1001, the court said:

“The maxim is enforced by the chancellor ex mero motu, and because of public policy, when the facts call it into use, though the disclosures are made at the trial as happened in this case. Sometimes it is applied where both plaintiff and defendant have knowingly made a contract tainted with illegality; sometimes it is applied where only the party seeking to enforce is in fault; but it proceeds always on the theory that the dignity of the court is touched to the quick, and that courts of equity will not countenance inequity.”

In Commomwealth y. Filiatreau, 161 Ky. 434; 170 S. W. Rep. 1182, it was held that—

“The maxim is broad enough to demand that he who prays from the chancellor protection, as well as he who seeks affirmative aid, must openly and frankly, without reservation or evasion, yield to the chancellor that full measure of confidence and truth which is prerequisite to the assertion and exercise of chancery powers, and the lack of which must necessarily repel him from a forum whose very foundation is mutual confidence and good faith.”

In Bearin v. Dux Oil Co., 166 Pac. Rep. 199, application was made for a temporary injunction, and the complainant falsely alleged that it was in possession of the premises involved in the suit to obtain the process of the court to enable it to regain possession. The supreme court of Oklahoma, on appeal, held that the complainant had not come into equity with clean hands and was not entitled to any relief, citing', among other cases, Michigan Pipe Co. v. Fremont, 111 Fed. Rep. 284 in which case Judge Sanborn said: “A suit in equity is an appeal for relief to the moral sense of the chancellor. A court of equity is the forum of conscience. Nothing but good faith, the obligations of duty and reasonable diligence, will move it to action. Its decree is the exercise of discretion, not of an arbitrary and fickle will, but of a wise judicial discretion, controlled and guided by the established rules and principles of equity jurisprudence. One of the most salutary of these principles is expressed by the maxims, 'he who comes into a court of equity must come with clean hands/ and 'he who has done iniquity cannot have equity/ A court of equity will leave to'his remedy at law- — • will refuse to interfere to grant relief to — one who, in the matter or transaction concerning which he seeks its aid, has been wanting in good faith, honesty or righteous dealing. While in a proper case it acts upon the conscience of the defendant, to compel him to do that which is just and right, it repels from its precincts remediless the complainant, who has been guilty of bad faith, fraud or any unconscionable act in the transaction which forms the basis of his suit.”

In Little v. Cunningham, 92 S. W. Rep. (Missouri Appeals) 734 a bill was filed for an injunction enjoining the defendants from maintaining a call bell and private telephone in connection with the main line of an unincorporated, voluntary association owning a small telephone line for mutual convenience in Knox county, and the court held tliat complainants were entitled to relief. Before decree, complainants removed the offending telephone without, authority from anyone. Notwithstanding this the court granted a decree which would give the right to the complainants to do the thing which they had in fact done. Appeal was taken. The appellate court, notwithstanding the complainants were entitled to relief which they asked in their bill, reversed the decree below and dissolved the injunction, because of the conduct of the complainants in removing the telephone before decree. In passing on the issues involved in that case, the court said:

“Notwithstanding the conclusive showing that the plaintiffs had thus proceeded vi et amis to administer for themselves a portion, at least, of the relief for which they pray in the bill, the court decreed a perpetual injunction.

“Indeed, it is true that the plaintiffs in error were the first wrong-doers, but the doctrine that a prior wrong on the part of one will justify a subsequent wrong on the part of the other certainly can have no countenance in a court of equity where the principles that die who seeks equity must do equity’ and' ‘he who seeks equity must come with clean hands’ guide and direct the chancellor. It is manifest from the record that the cause of the defendant in error became polluted during the p'endencjr of the suit with the same character of wrongful conduct toward the rights of the plaintiffs in error as had the cause of the plaintiffs in error been polluted by the prior misconduct on their part, and the cause of the defendants in error having thus become soiled by their own iniquity, they could have no equity.

“One of the ancient and familiar maxims of equity jurisprudence is that ‘he who comes into equity must come with clean hands.’ The maxim has been otherwise stated, ‘who does inequity shall not have equity.’ * * * They must come with clean hands, with a conscionable regard for the rights of others, ready to do equity on their part and seeking only equity at the hands of the court. * * * And in discussing the salutary principle, it is said: ‘Generally, when a party seeking the intervention of equity has been attempting to secure his ends by means resembling those which he seeks to enjoin he will be denied relief. * * * The principles of equity, identical with the principles of justice and truth as they are, are applied by a court of conscience on the status of the ease and the parties as they are revealed at the time the relief is administered by decree, rather than at the date of the institution of the suit, inasmuch as by virtue of these wholesome principles arise the conditions which are imposed by the court’ as the price of the decree it gives; and if unfavorable circumstances have arisen by the wrongful conduct of the parties during the pendency .of the suit, the court will take such circumstances into account at the final reckoning. * * * It is palpable that the defendants in error, by their unwarranted intrusion in cutting the wire and thus cutting the plaintiffs in error from the main telephone! line during the pendency of the suit and thus assuming to themselves by force of arms the relief which they had prayed the court by their bill to grant, place themselves as much .beyond the pale of conscionable conduct as had plaintiffs in error by their acts complained of in the bill.”

In Hartan v. McKee, 73 Fed. Rep. 556, relief was denied because the plaintiff for the purposes of the case had changed the date of certain letters, although on the facts he would have been entitled to relief if his hands had been clean.

In the English case of Collins v. Blantern, 2 Wils. C. B. 847; 95 Reprint 850, the court said: “’All writers upon our law agree in this, no polluted hand shall touch the pure fountain of justice, and those so entering the temple will be expelled with the anathema, ‘Procul, O, Procul este prof am." ”

An adverse claimant of land who purchases a lease or procures a tenant to attorn to him gains no rights in equity by the possession so obtained. Latham v. Northern Pacific Realty Co., 45 Fed. Rep. 721; Stetson v. Cook, 39 Miclv. 750.

In the case at bar, it will be noted that the complainants have obtained possession of the premises involved in this suit by fraudulently procuring what amounts to attornment by the tenant; namely, the delivering up of the keys. The unconscionable character of the transaction between the parties need not be pleaded by the defendant. Whenever it is disclosed the court wall, of its own motion, apply the maxim and it does not matter at what stage of the proof or in what order a lack of clean hands is discovered. 21 Corp. Jur. 186.

But the authorities on the doctrine of unclean hands are not, by any means, confined to foreign jurisdictions. This principle has been repeatedly expounded and applied in this court and its exposition and application repeatedly affirmed by our court of errors and appeals. Examples of its applieation will be found in Cutter v. Tuttle, 19 N. J. Eq. 549; Johns v. Norris, 22 N. J. Eq. 102; Watson v. Murray, 23 N. J. Eq. 257; Ellicott v. Chamberlain, 38 N. J. Eq. 604; Winans v Graves, 43 N. J. Eq. 263; Brook v. Cooper, 50 N. J. Eq. 761; Hildebrand v. Willig, 64 N. J. Eq. 249; Vulcan Detinning Co. v. American Can Co., 70 N. J. Eq. 588; reversed, but not on principle, in 72 N. J. Eq. 387; Pendleton v. Gondolf, 85 N. J. Eq. 308, where Vice-Chancellor Learning reviewed a number of cases (Prindeville v. Johnson, 93 N. J. Eq. 425; Neubeck v. Neubeck, 94 N. J. Eq. 167), and see the later case of Clickner v. Clickner, 95 N. J. Eq. 479, where Vice-Chancellor Buchanan denied relief to a petitioner for annulment on the ground that he had, by his testimony, been guilty of an attempt to fraudulently impose upon the court.

Measured by the standard of these eminent authorities the complainants’ conduct falls far short of equitable requirements warranting the exercise of the extraordinary powers of this court in their behalf. It is baldly apparent that not only did the complainants not come into this court with clean hands, but they have not kept them unsoiled since their entry. They were guilty of -fraud and unconscionable conduct in connection with this particular transaction when they induced Mr. Hauptman, the representative of the defendant Bynda Development Company, to have a photostatic copy of the deed, which was in his possession, made, and then obtained the photostatie copy and attached it to the mortgage and then had both recorded. This deed was obtained by trickery and stealth, by false pretences, which is nothing more nor less than a form of stealing. I say "they” because Mr. Gluck was either the real party in interest, as claimed by the defendant, or his wife’s agent, acting with her full knowledge and authority. Mr. Hauptman had no idea of their intention in obtaining the deed or he would not have permitted a photostatic copy of it to have been made. He acted in good faith, but they did not. The subsequent execution of the mortgage and the recording of it and the photostatic copy of the deed together, indicates an attempt by the complainants to arbitrarily appropriate to themselves rights to which they could not be entitled except upon complainants’ complete performance of the terms of the contract. This conduct has already been twice stamped as fraudulent by this court and as already indicated is res adjudicóla,. Having, in effect, stolen the deed, they then attempt to steal the property represented by it, through the medium of the recording acts. Knowing that the register of deeds would not accept a photostatic copy of the deed itself for record, they resort to the scheme of executing a mortgage and attached this copy of the deed to it for purposes of reference, and in this way procured the deed to be recorded. In view of this situation, it is perfectly plain to me that complainants’ hands were not clean when this bill was filed, nor have they kept them clean since coming into court. As incidental to the relief for which they have prayed, one of the rights which it was their purpose to obtain was the right to the possession of the premises in controversy. Notwithstanding the fact that they sought these rights in a court of conscience, they have, as was said in Little v. Cunningham, supra, “proceeded vi et amis to administer for themselves a portion at least of the relief for which they pray in the bill.”

It is apparent that the complainants had little faith that this court would award to them the full measure of relief to which they claim they were entitled, and their conduct in attempting to appropriate to themselves by force and arms rights which they claimed and which were, incidentally, here in controversy, is unconscionable. Their hands are now not only not clean, they are dripping with filth and slime, and I denounce their conduct as bordering on rascality and as repellant to every sense of righteousness and fair dealing.

As to Mr. Gluck, himself, I do not consider him worthy of belief. While he is an attorney of the New York bar, he boasts of the fact that he has on numerous occasions been suspended by the New York courts, and has been at least once jailed for contempt. His conduct here on the stand to-day would justify his commitment, and if I had been less charitably inclined, he would have been committed this morning.

The complainants claim, however, that this court has no jurisdiction to remedy the wrong thus imposed on the defendant Arlington Realty Company, because, as they claim, the right to possession is a legal right, enforceable only in a court of law, because it involves a right of title; and while this theory, as a general proposition, may be true, it is unconscionable for the complainants to now attempt to assert it. If this contention is correct, then my conception of the principles lying at the foundation of this court’s jurisdiction is a completely mistaken one. It is unheard of that this court cannot maintain the status quo during the pendency of any suit properly before it. Such an assertion is a denial of the right to the issuance of preliminary injunctions, a right freely exercised in this tribunal. The complainants themselves have sought relief in this court and thereby submitted themselves and this controversy in all its phases to the jurisdiction of this court, and it does not lie in their mouths to deny the court’s right to dispense justice to all the parties involved. It should be borne in mind that the remedy by specific performance in this court is discretionary. The question is not, what must the court do, but what, in view of all the circumstances of the case in judgment, should the court do to further justice. Plumer v. Keppler, N. J. Eq. 481.

Eor the reasons above stated the complainants’ bill will be dismissed, with costs. The prayer of the counter-claim of Arlington Realty Company will be allowed and the complainants and Erieda Horn will be directed to deliver up and surrender for cancellation the mortgage and photostatic copy of the deed which have been recorded, and they will be declared null and void. I will also advise a decree directing that the complainants forthwith vacate the premises in question, and, in the event of their failure to comply therewith, a writ of assistance may issue as in foreclosure cases. If the complainants have any rights at all they may pursue their remedies at law, but under the circumstances the discretionary powers of this court will not be exercised in their behalf. The motion of the complainant to strike ont the petition of Arlington Realty Company will, of course, be denied. I will hear counsel on the question of the form of the decree and counsel fee next Tuesday.

Mr. Tansey — Will you grant a stay?

Court — I will grant no stay whatever with respect to possession of the property.