author: Collins, J.

text:
    William Harrigan, complainant and appellant, v. Anthony P. Smith, defendant and respondent.
    [Filed March 6th, 1899.]
    Mere lapse of time before resort to a court of equity to compel an assignment of a part interest in a patent to which a complainant is equitably entitled will not necessarily bar a decree for such relief, but if the delay be great and the circumstances such as to make it inequitable to permit an account of profits to be demanded, an assignment will be decreed only on terms that an accounting be denied.
    On appeal from a decree advised by Vice-Chancellor Emery, who delivered the following opinion :

      The bill is filed for the specific performance of an agreement for the assignment of a three-sixteenths interest in certain inventions of defendant, for which letters-patent have been granted to him, and for the recovery of a like interest in the profits arising from their manufacture and sale, and for an account of the profits in the business of the manufacture and sale of the patented articles under the patents. The patents issued to defendant were two in number, one dated January 15th, 1889, the other January 21st, 1890. The alleged agreement for assignment was an oral one, and the final agreement, changing in some respects the original agreement, was made, as alleged in the bill and as appears by the complainant’s evidence, in the spring of 1891, and included a right to a three-sixteenths interest in the patents then obtained by Smith and in future improvements. Harrison had already paid Smith $400 upon the original agreement made iñ 1888, and in 1891 the assignment was drawn and tendered to Smith for execution, by directions of complainant, who also offered to pay the additional price. The defendant, according to complainant’s statement, while promising to execute the assignment, delayed or neglected to do so, and when complainant, not later than 1891, applied to him to execute the assignment he refused to do so. Smith’s statement is that he refused from the first. Smith, after the alleged agreement and after this refusal, continued the manufacture and sale of the patented articles at his own risk and account, built up a business of considerable extent, and complainant made no further application or demand on Smith until the filing of the present bill on January 16th, 1896, after Smith had concluded negotiations for a sale of the patents and business. Complainant now prays an assignment of a three-sixteenths interest of the patents and a like share of the profits. Smith admits in his answer an agreement to convey to complainant an interest in the first patent granted, which agreement was made in December, 1888, pending the application for that patent, but denies that this agreement covered, or was intended to cover, any patent except the one then pending, or that it covered any agreement to share the profits of the manufacture, and denies any agreement either then or subsequently to convey any interest in the subsequent patent. The first patent is claimed to have been impracticable and to have been practically useless, and has been abandoned, and the entire manufacture and sale of defendant’s business is now carried on under the second and subsequent patents.
    Upon the question of the existence and terms of the agreement, I am inclined to think upon the whole evidence that the complainant’s claim as to the terms of the agreement, so far as relates to the assignment of the patents, is made out and that the agreement to assign did include the subsequent patent. But without deciding this point I reach the conclusion that complainant is not entitled to specific performance in this case, even if the agreement alleged is satisfactorily made out by the evidence. The right of complainant to specific performance is barred by his delay in applying for a specific performance of the contract. Complainant had notice in 1891 that defendant refused to perform the contract alleged to have been made, and if he desired to compel specific performance of the contract complainant was then bound to apply for it without delay, and the delay in filing bill until 1896 is fatal. Ketcham v. Owen, 10 Dick. Ch. Rep. 344, and cases cited; Merritt v. Brown, 6 C. E. Gr. 401. The rule against delay is specially applicable where the subject-matter of the contract is of a speculative and fluctuating value (Mills v. Haywood, 6 Ch. Div. 196), or is a patent (New York Paper Bag Co. v. Union Paper Bag Co., 32 Fed. Rep. 783). And if in addition the complainant under the agreement claims, as he does here, a right to share in the profits of the subsequent manufacture, this must be either as partner or joint owner, and under a relation making him liable for the losses and expenses, there is an additional reason for the promptest assertion of his claim to specific performance, and status of partner or joint owner. Complainant’s counsel contend that by payment of a portion of the purchase-money in December, 1888, the defendant became in equity trustee for the complainant in all the patents thereafter issued, and that the statutes of limitations do not apply to the case, because it was an executed and not an executory trust. But the contract between the parties was clearly of an executory character and contemplated the future execution of a conveyance. The interest of the complainant, therefore, was an executory interest as distinguished” from an executed trust, and the case is to be governed by the equitable rules relating to specific performance rather than those relating to executed interests or trusts. The rule against delay is more peremptory on the application for specific performance than in the case of executed trusts. The cases cited by the complainant’s counsel, where specific performance of an agreement to convey was decreed after long delay, appear on examination to be cases where the complainant seeking performance had been put into actual possession of the property agreed to be conveyed upon the making of the agreement, and supposed no further assurance was necessary. New Barbadoes Co. v. Vreeland, 3 Gr. Ch. 157, 161 (Chancellor Pennington, 1842).

    A proposal or statement which was made by Smith to complainant after his refusal in 1891 to convey to complainant is relied on as explaining and overcoming the delay. Smith, as he himself testifies, told Harrigan, who had complained to him that he was hard up for money, that he could probably get him some money for his interest. This was after July, 1891, when Smith left the aqueduct board. Before this time Smith had refused to convey an interest in all the patents, but he had not refused to convey to Harrigan an interest in the first patent, nor had such assignment been asked; and at that time Smith, according to his own admission, had received $400 from complainant on account of an interest in the first patent. Under these circumstances and in view of Smith’s previous claim that complainant was not entitled to any interest in the second patent or in the business, the offer or proposal cannot, in my judgment, be considered such a recognition of complainant’s rights to a conveyance of all the patents and to a share in the profits then and afterwards to be made as to justify complainant’s delay in asserting these rights. Upon the ground, therefore, of delay in applying for the specific performance of the contract, relief must be denied.
    Subsequent to the filing of the answer the defendant conveyed to a company in which he is a stockholder and officer the patents in question, and the deed of conveyance was offered in evidence at the hearing. Defendant claimed that the complainant’s suit for specific performance thereby became ineffective and that no decree for specific performance could be made against Smith. But the assignment in this case expressly provided that it should not in anywise include the claims, rights and interest, if any, of the complainant in the patents, the sale being expressly subject to such claims, which, however, was not admitted. Smith’s assignment does not convey complainant’s interest, and the rule requiring purchasers pendente lite to be made parties where their conveyance of the legal estate is required, stated in the textbooks (1 Dan. Ch. Pr. 281; Story Eq. Pl. § 351), does not apply; and inasmuch as the bill also prays for the assignment or the establishment of an interest in the profits of the business and an accounting, the claim of complainant is one to be considered and determined on the case against defendant and without requiring the assignee pendente lite or defendant to be made a party.

      Mr. Frank E. Bradner, for the appellant.

      Mr. Robert FI. McQarter, for the respondent.
   'The opinion of the court was delivered by

Collins, J.

The complainant failed to establish the final contract alleged, or any contract at all as to improvements on the defendant’s original invention or as to participation, as partner or otherwise, in defendant’s profits. The only contract proved was with reference to the invention on which the defendant had applied for a patent on November 2d, 1887, and for which letters numbered 396,177 were .issued January 15th, 1889. This contract was oral, and, according to the testimony of all concerned, must have been made near the beginning of the year 1888. Its effect was to give to the complainant a three-sixteenths interest in the invention and in the expected patent, for a consideration of $750. The exact tenor of the contract is hard to gather from the testimony, but, in the light of a receipt afterwards given by defendant, I think that it was an absolute contract of purchase in prcesenti. This receipt was given on December 6th, 1888, and reads as follows:

Newark, N. J., December 6th, 1888.
“Received from Ellen McLane and William Harrigan, five hundred and twenty-five dollars, on account of fifteen hundred dollars, for three-eighths (■§-) interest in patent tapping apparatus.
“Anthony P. Smith.”

I think that this paper indicates that by the contract the purchasers became immediately entitled to their respective interests in the invention, conceded to have been several and not joint, and that the seller became immediately entitled to the purchase price.

An inchoate right in a patentable invention is a subject of lawful sale, and a sale of such a right carries with it a corresponding interest in the patent when letters are afterwards issued. Clum v. Brewer, 2 Curt. C. C. 506; approved, Hendrie v. Sayles, 98 U. S. 546. In Clum v. Brewer it was said by Mr. Justice Curtis that if the purchaser does not get the legal title, a jus in re, he certainly does get an equitable title, a jus ad rem, and can use or license others to use the invention, and can at any time demand a formal assignment of his interest in the patent. In the case that was then before the court, the written contract provided, in terms, for an assignment of the purchased interest, when the patent should issue; but even without such an agreement an obligation to assign is necessarily implied in a sale of an interest in such an invention.

It makes little difference whether we consider the contract between the parties to this cause as one of purchase, or as one for purchase, for the defendant admits an agreement to assign on payment of the purchase price. Specific performance of an oral contract to assign an interest in letters-pa'tent when issued will be compelled. Such a contract is neither within the statute of frauds nor within section 4898 of the United States revised statutes, requiring assignments of patents to be in writing. Dalzell v. Duerber Manufacturing Co., 149 U. S. 315.

The reasons given by the learned vice-chancellor for the denial of a decree for the specific performance'of the contract claimed by the complainant are cogent, and, perhaps, convincing; but I can see no objection to.a decree enforcing, on equitable terms, the contract admitted by defendant. Mere lapse of time will not defeat a claim of equitable ownership in a patent. In Clum v. Brewer, ubi supra, the original agreement was made in 1838, and Judge Curtis, in 1855, said that the purchaser then had the right to call for an assignment of even an extension of the patent, which he held was necessarily implied in the sale of an interest in the invention.

The defendant has always acknowledged the complainant’s right to an assignment of a three-sixteenths interest in patent 396,177. In his answer, indeed, he alleged that the contract therefor had been rescinded, but he offered no proof of rescission. On the contrary, he testifies to his willingness, in 1891, to assign such an interest. The only dispute was that complainant demanded more. He adds: I always intended to give him what he bought.” He admits receiving $400 on account of the purchase price, and while it is true that the complainant made no tender and demand in conformity with the contract, it is also true that neither did the defendant. The defendant has always recognized the complainant’s rights, and, in his answer to so much of the bill as sought to enjoin a contemplated sale, he averred that he intended to except those rights. In the sale that he has made, pendente lite, he has excepted those rights.

That the claim of the bill is too broad and the original contract not accurately stated should not work a dismissal. The real contract is sufficiently proved; there is a prayer for general relief and .the court ought to make an end of the controversy. A decree should be made under which the complainant may be assured the legal title to a three-sixteenths interest in patent 396,177 as of the date of such decree, but no other relief should be accorded. If we were to go farther and require an account of past profits or royalties injustice would be done. Joint owners of a patent are not partners. Parkhurst v. Kinsman, 2 Halst. Ch. 600; S. C., 1 Blatchf. 488; Marsh v. Newark Heating, &c., Co., 28 Vr. 36. Each owner, legal or equitable, in a patent may use it or license others to use it, or grant rights under it. The cases are unanimous to this extent. A tentative suggestion of Mr. Justice Hall, in Pitts v. Hall, 3 Blatchf. 201, that an assignment or a license by one co-owner should be considered as an infringement on the rights of the others and, at their option, be treated as a conversion actionable at law, met with no favor and has long ago been repudiated. Accountability for profits or royalties where there is no partnership or other agreement on the subject is, strange as it may seem, still a moot point on which there has been very little direct pertinent adjudication. The only real decision on the subject is Vose v. Singer, 4 Allen 226, in which case, in 1862, the question was treated as one of first impression. In a well-reasoned opinion, fortified by alleged concurrence with the views of those members of the legal profession who were specially versed in patent-rights, the Massachusetts supreme court denied the liability of a part owner of a patent to his co-owners for any portion of the profits arising from the sale of the patented articles. This deliverance has been followed both in England and in this country by dicta even more broadly asserting the doctrine of non-accountability. Mathers v. Green, L. R. 1 Ch. App. 29 (1865); De Witt v. Elmira, &c., Co., 66 N. Y. 459 (1876); Burr v. De La Vergne, 102 N. Y. 415 (1886); Gates v. Fraser, 118 Ill. 99 (1886).

In the New York case first cited, the court of first instance (5 Hun 301) drew a distinction between personal use by the part owner and a transfer of rights, which was approved in the Illinois case when first considered (9 Bradw. 624), but the court of last resort recognized no such distinction. On the other hand, Chancellor Halsted, in 1847, seems to have taken it for granted that co-owners of a patent must account to one another, even for individual manufacture and sale. Parkhurst v. Kinsman, 2 Halst. Ch. 600. Judge Drummond, in 1876, while conceding that the difficulties in the way were nearly insurmountable, •expressed his opinion that a licensor of patent-rights, who was -only a part owner of the patent, ought to be made to account to his co-owners if he received more than his equitable share • of profits (Dunham v. Indianapolis, &c., Railroad Co., 7 Biss. 223), and last but not least Mr. Justice Bradley, in 1887, in the United States circuit court for New Jersey, declared in favor of •the strictest accountability to co-owners for every sort of dealing with a patent. Aspinwall Manufacturing Co. v. Gill, 32 Fed. Rep. 697. He said, however, that the matter was unsettled and .his opinion purely speculative. Our own supreme court con.siders the subject an open one. Marsh v. Newark Heating, &c., Co., ubi supra.

It would be very unjust to permit the complainant, who, for •years, during this unsettled state of the law, has stood idly by while the defendant, by his energy and industry, was building •up a business, now to come in and even raise the question of a right to share in the success of that business in the past. He •did not sow and he should not reap. It is enough that we do not suffer his laches to bar him from the aid of a court, of equity .to compel a formal assignment of his interest in the patent. He may stand upon his legal rights if he will, but if he seeks • equitable aid he must accept it on equitable terms, and those are vthat an accounting be denied.

Because we reach this conclusion we will hot inquire into .another question raised in the case, and that is whether any of the defendant’s profits have been derived from the patent in which complainant has his interest. The second patent was .applied for December 29th, 1888, and issued January 21st, 1890. Defendant says, and seems to have proved, that it is for .a substantially different invention from that of the first patent. While a mere change in construction of a machine or apparatus will not defeat a patent on the real invention involved (Parkhurst v. Kinsman, 1 Blatchf. 488), yet a substantial variation or improvement does not enure to an assignee (Essex Button Co. v. Paul, 48 Fed. Rep. 310.)

Apart from this, defendant attempts to prove, and has not •been satisfactorily answered, that it was discovered that both his patents infringed on an earlier one issued to James Curran, which he was therefore compelled to buy, and that it is under that patent that his business has been conducted. If these claims be well founded complainant’s right will be a barren one, but we will not prejudge it. Such claims would only be available in this action to defeat an accounting, and to that end are unnecessary. Questions of validity of. patents are more properly, if not exclusively, within the jurisdiction of the federal courts. They certainly cannot be drawn into a state court except collaterally, and there is no need for such collateral inquiry now. It is better that those suggested in this cause shall be directly tried and settled in the future conduct of business by these parties.

The decree appealed from should be reversed and a new decree be made, simply giving to the complainant the formal assignment to which we adjudge him to be entitled, on terms that he pay into court or to a master who shall supervise the execution of the instrument the sum of $350 without interest.

Inasmuch as the complainant never demanded such an assignment as he was entitled to receive, and never tendered payment of the purchase price therefor, except on a demand with which the defendant could not comply, and came into court with a broader claim than he could sustain, no costs in the court of chancery should be allowed him. If the complainant shall not, within a short time to be fixed by the court of chancery, comply with the terms above imposed the bill may be dismissed, with costs.

The appellant is to have costs in this court.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


source: Caselaw Access Project

author: Vredenburgh, J.

license: Public Domain

text:
    Mina Buttlar, complainant and appellant, v. Christian Buttlar, defendant and respondent.
    [Filed March 6th, 1899.]
    1. While separation between husband and wife in pursuance of mutual articles of agreement will not be enforced by the decree of a court of equity because against the policy of our laws, yet the court will not suffer a husband who has become possessed of the property of his wife by virtue of such agreement, to avail himself of his own wrong in order to free himself from the duty to maintain his wife.
    2. In a suit in equity brought by a wife directly against her husband to enforce an agreement providing for payments of money by him for her separate support, founded upon a valuable consideration passing from the wife to the husband (and for a breach of the covenants of which agreement the wife, but for her coverture, could have enforced her remedy at law), the rules of evidence as administered in a court of law will be applied, and a defence* which would have been overruled at law will not be entertained in equity.
    3. Payments accruing under such an agreement will be decreed in equity in the wife’s behalf not only on the general ground declared in Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302, but also for the reason that the husband’s possession of the property of the wife for the purpose of her support, fastens upon him the obligation of maintaining her.
    4. The agreement in this case construed to require the husband to satisfy out of the income of his business and property any deficiency of the rents collected by him from his wife’s property to meet his agreed monthly payments to her.
    5. The husband’s offer to resume marital relations with his wife, set up by his answer, is not legally established when it rests alone upon .his uncorroborated testimony to the effect that he made no offer to her personally, but sent his friends to make such offer; nor can such offer, even if made Iona fide and proved to have been duly communicated to her, defeat her right to recover in this suit the arrears of payments due her under the agreement in question, nor while the husband retains the exclusive use and control of the wife’s property transferred to him by it.
    On appeal from a decree advised by Vice-Chancellor Pitney, who delivered the following opinion:
    The bill in this cause is filed by a wife against her husband to recover certain arrears of an annuity secured to her by his personal covenant under seal. That document is dated January 31st, 1894, and provided for the payment of $75 a month, commencing with the following month, but not mentioning any period that it should continue. Payments under it were made and all pecuniary matters settled between the parties up to the-1st day of May, 1895. Six more payments, to October, 1895, inclusive, were made in full. In November, 1895, the defendant declined to pay more than $50, and made that payment each month up to the time of the hearing in May, 1897. The bilí was filed on April 15th, 1896. At that time, by the terms of the agreement, there was due $25 on each of the months of November, December, 1895, January, February and March, 1896, and the prayer is for the arrears thereof shown.
    The agreement is somewhat similar to that which was the foundation of the suit in Aspinwall v. Aspinwall, 4. Dick. Ch. Rep. 302.

    [Here follows a recital of the terms of the agreement.]
    The defendant took possession of the premises, has collected the rents, kept the premises in repair and kept down the interest ever since. He has not paid all of the taxes for the reason, as he swears, and I think truly, that he has been.unable to-do so.
    The defence is that, owing to the unexpected change in rental values, the bargain turned out to be a hard one for the husband that the rents and profits have not been sufficient to pay the taxes, keep the premises in repair and insured, keep down the interest on the mortgages and also to pay the annuity to the-wife.
    The West Hoboken lots were covered by five tenement-houses, each containing two suites of rooms. The Hoboken property was covered by a feed-store, which was and has ever since been occupied by Buttlar himself.
    A fair but full rent for the feed-store is $35 a month, amounting to $420 a year.
    At the date of the agreement the tenement-houses were all rented, except the flat which was occupied by the husband, at the rate of $33 a month for each house — that is, $17 for the-first floor and $16 for the second floor. At that rate the total income was $200 a month or $2,400 a year.
    The West Hoboken premises were subject to a mortgage of $6,000, and the Hoboken feed-store to one of $3,000, amounting in the aggregate to $9,000. The interest on the $6,000 mortgage was at five per cent, and on the $3,000 mortgage at six per cent., making $480 annual interest. The ordinary taxes amount to $250 a year and the water rents on all the premises $75 more; the ordinary repairs to $200 and the insurance to $20, making a total fixed charge of $1,025 a year or a monthly payment of $85. If the houses had been occupied steadily by tenants who paid their rent at that rate, the husband would have made a small profit out of the transaction, for, while his fixed charges were about $1,025 a year and his wife’s payments amounted to $900, or in all $1,925, his income, including his own rent, was $2,400, leaving him about $475. But he had a large arrear of assessments — $485 less $62.50 — to pay, and he had also to meet the inevitable losses arising from tenants failing to pay and moving out and a part of the premises remaining unoccupied and unprofitable.
    The income from rents began to fall off within a year or two after the contract was made, and in November, 1895, fell off so greatly that he then, as he above stated, reduced his payment to his wife from $75 to $50 a month. He was obliged to reduce the rent. From November, 1895, to April, 1897, inclusive, a period of eighteen months, the total cash income from the rents was $1,454, an average of $81 a month. During some of the months it fell as low as $35. Adding to this $15 a month for one of the flats occupied by the husband and $35 a month for the rent of the feed-store, we have a total of $131 a month. Deducting from that the fixed charge of $85 a month leaves a net income of $46 a month for the eighteen months. In the months of March and April, 1897, the rents had risen to $120 and $122 a month respectively, besides (as I understand the evidence) the rent of the portion occupied by the husband, which would make it in all about $175 a month.
    The evidence satisfies me that $29 a month for each of the five tenement-houses, or $145 a month for the whole, is a full price, and from that sum must be deducted something for the unavoidable loss from tenants unable to pay, or from actual vacancies. I am also satisfied that the loss of rent, occurring principally in the calendar year 1896, was owing to the depression in business, and the falling off of demand for dwellings, and not to any fault of the husband.
    If, then, the defence of hard bargain is available to the defendant, I think it is made out. But for the circumstance that the relation of husband and wife exists between the parties, the remedy upon this contract would be an action at law in contract; and the suit is brought in equity simply on account of the technical rule that a husband or wife cannot sue each other at law. The question is whether the suit brought by the wife, by such a necessity, in a court of equity, is liable to equitable defences. It was called, but I think not properly, a suit for specific performance. I think it must be considered as a simple action for money due by contract. But having been brought into a court of equity, it seems to me that the defendant may avail himself of any equitable defence. He has not resorted to a .cross-bill and asked to be relieved entirely from the effect of his covenant, but he does set up in his answer, and has proven, that he has offered to resume — and he did offer at the hearing to resume — marital relations with his wife, and he further offered, by his answer, to convey to her the West Hoboken property out and out, if she would relieve him from his covenant.
    Each party, under protest by the court, entered into evidence as to which was to blame for the differences between them which led to the separation, but an examination of the evidence fails to show with any certainty which party was to blame. I think the probability is that the husband’s statement of the cause is the true one, viz., that his wife insisted on collecting and appropriating to her own use all the rents, leaving him personally liable for taxes, assessments, repairs and insurance. The arrears of taxes and assessments due at the date of the agreement indicate this.
    The question of the support of infant children did not enter into the contract, the two children of the marriage being grown up and able and willing to take care of themselves. The wife and the husband appeared equally hale, hearty and able-bodied persons, and the wife as well able to support herself as the husband. The property in question stands in their joint names, the estate being the peculiar one arising out of the conveyance to husband and wife as such, and was the result of the joint labors of each. Taking all the facts and circumstances and the verbiage of the contract, I am satisfied that the amount of the payment fixed therein was based upon the net income of the property and not on the earning capacity of the husband, and that it was not understood or expected that the husband was to pay more than he received in rents, but that it was supposed by both that the rents would be ample to pay the wife the whole annuity and leave something over for the husband. Owing to the depreciation in the rental value of the property, not expected or anticipated by either party, the rents have been for a time insufficient to meet the payments. I am satisfied that the husband has done his best to make the payments and also keep down the fixed charges, and has been unable to do so. He exhibited his books of account of his personal business, and seemed desirous of making a complete expose of all his affairs.
    For these reasons I come to the conclusion, contrary to my first impressions, that the complainant is not entitled to relief, and that her bill should be dismissed, without costs, and without prejudice to any future suit based upon non-payments from and after May 1st, 1897.

      Mr. John I. Weller, for the appellant.

      Mr. William S. Stuhr, for the respondent.
   The opinion of the court was delivered by

Vredenburgh, J.

The bill prays the enforcemont of an agreement between the parties, of which the following is a copy :

“This indenture made this thirty-first day of January, A. D. eighteen hun., dred and ninety-four, between Christian Buttlar, of the town of West Hoboken in the county of Hudson and State of New Jersey, party of the first part, ancf Mina Buttlar of the same place, party of the second part.
“ Whereas divers disputes and unhappy differences have arisen between 010 said party of the first part and his said wife, for which reason they have con-^ sented and agreed and hereby do consent and agree to live separate and apart from each other during their natural life therefore this indenture witnesseth r that the said party of the first part, in consideration of the premises, and in' pursuance thereof, hereby covenants, promises and agrees to and with his said wife, that it shall and may be lawful for her, his said wife, at all times here-after to live separate and apart from him, and that he shall and will allow' and permit her to reside and be in such place or places and such family or' families, and with such relations, friends and other persons, and to follow and carry on such trade or business as she may from time to time choose or think fit; and that he shall not nor will at any time sue or suffer her to be sued for living separate and apart from him, or compel her to live with him; nor sue,molest, disturb or trouble any other person whomsoever, for receiving, entertaining or harboring her; nor shall or will at any time hereafter claim or demand any of her money, jewelry, plate, clothing, household goods, furniture' (excepting one-half carpet, one bed and bedding complete, one sofa, four chairs and one clock which are to remain the sole property of Christian Buttlar) or stock in trade which she now has in her power, custody or possession, or which she shall or may at any time hereafter have, buy or procure or which shall be devised or given to her, or that she may otherwise acquire,- and that she shall and may enjoy an absolute disposition of the same as if she were a feme sole and unmarried, except the real estate hereinafter mentioned which is owned by them jointly.
“And further that the said party of the first part shall and will, well and truly, pay or cause to be paid for and towards the better support and maintenance of his said wife the sum of seventy-five dollars ($75) per month, commencing on the first day of February next, and payable on the fifteenth day of each and every month, and which the said party of the second part does hereby agree and take in full satisfaction of her support and maintenance and all alimony whatever, and the said Mina Buttlar in consideration of the said premises and also for and in consideration of the sum of one dollar to her in’ hand paid, does hereby agree to and with her said husband, the party of the-first part, that he shall be entitled to receive during the term of his natural! life all the rent, income and profits of the property now owned by them in their joint names, known as Nos. 600, 602, 604, 606 and 608 Malone street, No. 339 West street, in the town of West Hoboken, and 654 and 656 First street, Hoboken, the said Christian Buttlar, however, to pay all taxes that -may hereafter be levied or assessed against said real estate, interest that may hereafter become due on mortgages now held against said property, and also' all repairs that may hereafter be required, excepting the painting of the outside of the buildings, to be done the coming spring, the expense of which the parties hereto are to bear jointly, each to pay one-half of the cost thereof, and the said Mina Buttlar further agrees to and with her said husband that she will pay the taxes against said premises for the year eighteen hundred and ninety-three, and also all water rents up to February first, eighteen hundred and ninety-four, and said Christian Buttlar furthermore agrees that his said wife may occupy the first floor in the house known as No. 600 Malone street in the. town of West Hoboken in the county and state aforesaid, until March first, eighteen hundred and ninety-four, she to pay therefor the sum of seventeen dollars (517) when she is to vacate the same, it being, however, understood that should Mina Buttlar not vacate the said premises on or before the' first day of March, then and in that case she is to pay the monthly rent of seventeen dollars (517) therefor, payable on the first day of each and every month in advance.
“And the said Mina Buttlar further covenants and agrees to and with her said husband to indemnify and bear him harmless of and from all her debts contracted or that may hereafter be contracted by her on her account, any and all money or monies which the said Christian Buttlar may be compelled to pay on violation of this last-mentioned covenant shall be deducted from the monthly payments to be made to her for her maintenance and support. And the said Christian Buttlar further agrees to pay all assessments now in arreará against the said premises, to which the said Mina Buttlar agrees to contribute sixty-two and fifty one-hundredth dollars (562.50) to be paid by her to Christian Buttlar on or before May first next.”

The complainant is the wife of the defendant, and because of her disability, by reason of her coverture, to sue in a court of law, seeks in a court of equity a decree compelling her husband to pay, under his covenants in the above-recited agreement, certain sums of money admittedly due to her and unpaid, and certain taxes assessed against her property. Her bill was dismissed by the decree below and her appeal brings it before us for review.

While separation between husband and wife, in pursuance of mutual articles of agreement, will not be enforced by the decree of a court of equity, such separation being against the policy of our laws (Miller v. Miller, Sax. 391; Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302), yet the court will not suffer a husband, who has become possessed of the property of his wife by virtue of such agreement, to avail himself of his own wrong in order to free himself from the duty to maintain her. Even without any such consideration, stipulations in such agreement to pay money for a wife’s support have always been regarded as enforceable in a court of equity in this state. Aspinwall v. Aspinwall, supra; Miller v. Miller, Sax. 386. We agree with the opinion of the learned vice-chancellor who heard the cause in the court of chancery, to the extent that this suit may be regarded and, to use his expression, “must be considered as a simple action for money due by contract; ” but notwithstanding this view, he felt constrained to hold that, having been brought in a court of equity, the defendant might avail himself of any equitable defence, and admitted evidence of the defence of “ hard bargain ” which, if offered in any court of law, would have been overruled. Does it follow because the wife has, perforce, brought her suit to assert her legal rights, under an agreement founded upon a valuable consideration, in a court of equity — to which forum her marital status forced her to resort under the penalty of a submission to a serious invasion of those rights — that they are to be determined by rules of evidence which would be rejected in a court of law? The instrument in question, dated January 31st, 1894, was entered into between these two parties, directly with each other and without the intervention of trustees, and in this respect as well as in its consideration differs from the agreement which was the basis of the suit in Aspinwall v. Aspinwall, supra, cited in the opinion below. It is founded upon. a valuable consideration passing from the wife to the husband in the form of'a conveyance or transfer under seal by her to him, for the term of his natural life, of the rents, income and profits of certain real estate, consisting of houses and lots in Hoboken, New Jersey, of which they were jointly seized and possessed. They had two children, daughters of the marriage, one of whom was then twenty years of age and taught school so as to be self-supporting, but lived with her mother, and the other was twenty-four years old and was married and lived elsewhere. It. will not be denied that the defendant’s marital obligation to support his wife, together with her transfer of her property for that object to his use, furnished not only a legal but also a valuable consideration for his undertakings to that end expressed in this paper.

The following excerpt from- this writing will exhibit sufficiently, perhaps, for the present purpose, the essence of that contract and the positive terms of the engagements of the parties, viz., that the defendant

“will well and truly pay or cause to be paid for and towards the better support and maintenance of his wife the sum of seventy-five dollars (§75) per month, commencing on the first day of February next and payable on the fifteenth day of each and every month, and which the said party of the second part [wife] does hereby agree and take in full satisfaction of her support and maintenance and all alimony whatsoever, and the said Mina Buttlar in consideration of the said premises and also for and in consideration of the sum of one dollar to her in hand paid, does hereby agree to and with her said husband, that he shall be entitled to receive during the term of his natural life, all the rent, income and profits of the property now owned by them in their joint names, known as Nos. 600, 602, 604, 606 and 608 Malone street, No, 339 West street, in the town of West Hoboken, and 654 and 656 First- street, Hoboken,' the said Christian Buttlar, however, to pay all taxes that may hereafter be levied,” &c.

In pursuance of this writing it is undisputed that the defendant took exclusive possession of the premises referred to, which he has ever since retained, made leases with tenants in his own name, collected all the rents and has treated the premises in all respects as the sole owner thereof. It is also admitted by the defendant’s answer and shown in the evidence that since and inclusive of November, 1895, he had failed to make the stipulated monthly payments to his wife, as well as to pay certain of the taxes against the property, his excuse, as alleged in his answer, being that he did not have sufficient means to do so.” It is clear that evidence offered in support of'such a defence, if set up in any court of law in any action founded on this agreement, would have been overruled, and the question to be now determined is whether it should have been entertained in the court below. The reason which enables a married woman to assert a legal right in a court of equity is that to deny her such right is to deny her all remedy and redress for a wrong done her, such a denial being contrary to every system of jurisprudence because at the foundation of the existence of all courts lies the ancient maxim of universal application, “ ubi jus ibi remedium.” Black-stone in liis “ Commentaries ” (vol. 2 book 3 p. 109) translates it into the common law in these words, viz., “It is a settled and invariable principle in the laws of England that every right when withheld must have a remedy, and every injury its proper redress.” The rule, which has grown up in equity relating to the specific enforcement of contracts that the hardship of the contract may be set up as a defence, exists under the assumption that the party seeking specific performance and having the choice of remedies, either at law or in equity, rejected the remedy at law and selected a court of equity in preference to that of law, in order to obtain a more complete redress for the injury complained of. But in a case where no such choice can be made, where the injured party is confined to a court of equity or otherwise must go absolutely without redress through the courts, the reason of this rule ceases. It would, it seems to me, be a clear denial of a “remedy” to hold that in such a case the injured party is obliged to waive her rights at law. The complainant was entitled to the benefit of the rules of evidence which a court of law would have enforced; such suit is held to be a form of legal proceeding which is carried on in a court of equity merely because the legal right cannot be asserted in the form of a suit at law. In Jenner v. Morris, 3 De G., F. & J. 45, Lord-Justice Turner, after quoting on this subject with approval from Lord Nedesdale’s treatise of pleading (Mitf. Pl. (4th ed.) 112, 134, and cases in support), said : “ It is therefore an gncient head of jurisdiction of this court to interpose in cases in which the principle of the law gives a right, but the forms of the law do not give a remedy.” And in that case the court allowed a set-off' in equity founded upon the defendant’s claim against the husband for money loaned to purchase necessaries for the wife’s support while separated from her husband, which the forms of law prevented him from recovering from the husband by suit at law. And see Walker v. Simpson, 7 Watts & S. 83; 1 Drew. & S. 218; Harris v. Lee, 1 P. Wms. 482, 483.

If, however, this case is to be decided solely by the rules of evidence and practice as administered by a court of equity no different result would be reached. Such an agreement, founded .upon a valuable consideration granted by its terms, is enforced by a court of equity in the wife’s behalf, not only upon the •general equitable ground laid down in the Aspinwall Case, supra .(where there was no such consideration), but also for the reason .that the husband’s possession of the property of the wife fastens upon him the obligation of maintaining her. 2 Story Eq. Jur. (6th ed.) 1424 and cases cited. But, applying the rules relating to the specific performance of contracts in equity, the defendant seems to have no standing. Pomeroy, in his 3 Jur. 1404, this subject states the equitable rule to be that

•“ where the contract is in writing, is certain in its terms, is for a valuable con•sideration, is fair and just in all its provisions and is capable of being enforced without hardship to either party, it is as much a matter of course for a court .of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach,”

.and, as approved and applied by the courts of this state both before and since the case of Plummer v. Keppler, 11 C. E. Gr. 482, the late Vice-Chancellor Van Fleet there stated the rule briefly as follows : While the remedy by specific performance is discretionary, yet when the contract has been fairly procured and its enforcement will work no injustice or hardship, it is enforced almost as a matter of course.” Adopting these statements of the rule as a guide, was this contract fairly procured? That it was fairly procured is not denied by this defendant either in his answer or in his proofs. It was drawn at his own request, by his confidential lawyer and adviser, who was then and has ever since remained, not only in the court of chancery but also in this court, his chosen counsel. Nor has this defendant claimed that this paper was procured through any fraud, accident or .duress, nor has he at any time offered to rescind, revoke or cancel it, nor to re-assign to the complainant her share of the leasehold estates, or her reversionary interest in the rented premises, or to place her back in the situation she originally occupied with respect to her properties, with the right to collect in her own name the portion of the rents to which she was entitled. >On the contrary, while still holding fast to all the benefits derivable by him from the exclusive possession of her property granted him by the instrument, he seeks to repudiate the obligations it casts upon him. He could not, it seems to me, escape liability on his contract except by rescission, and that could be accomplished, if at all under present conditions, only by an offer, by way of a cross-bill, to restore the consideration.

Will the enforcement of this agreement work any injustice or hardship to the defendant? Its language is devoid of all ambiguity. There is nothing in it to suggest that his payments under it to his wife were to be limited to or conditioned upon the amount of his net receipts of rents from the joint property, and no reason is perceived why he should not contribute from his private income to the fulfillment of his marital obligations, in accordance with this agreement, if that be necessary in order to make up a deficiency of rents. There is no evidence to show that the expressed sum of $75 a month was excessive for the wife’s proper maintenance. What the defendant’s private income from his regular business amounted to must be, under the evidence, the subject of mere conjecture, for the whole account was in his keeping. He produced no cash-book or ledger to show the amount of his business dealings, and when pressed by cross-examining counsel as to whether his net income from his own business (feed-store business) was not more than $700 a year, he answered, “I doubt it.” In' his unverified answer to the bill of com plain ant he states that the income from his business was “ hardly sufficient to keep him,” but he fails to state the amount of his receipts therefrom and his disbursements thereout, nor what sum he regarded as insufficient, so that the court could judge what sum should be regarded as sufficient. If his wife be correct in her testimony his habits of life may have exhausted quite a considerable sum in order to maintain him in his peculiar style of living. It is not important to quote the testimony on this point. It is sufficient to say that it shows the separation arose not from any fault charged upon the complainant but from that of the defendant.

The adjudications in this state and elsewhere hold it to be firmly-settled law that the husband is bound to support his wife where the two are separated by mutual consent, the same as where they are living in cohabitation, and even the same as where they are separated through his fault (7 Bish. Mar. & D. 578, and cases there cited); and it is held also that in separations resting only in parol and independently of any express agreement founded on a valuable consideration, the husband is bound to furnish his wife with such articles of food, apparel, medicine and medical attendance, nursing, such provided means of locomotion, provided habitation and furniture, such provision for her protection in society, and the like, as the husband, considering his ability and standing, ought to furnish to his wife for her sustenance and preservation of her health and her comfort. 1 Bish. Mar. & D. 554, and cases cited in note.

The defendant does not pretend that the complainant’s allowance was exorbitant or excessive in amount. After accepting from her her means of support, and limiting her to a fixed monthly sum, and expressly providing that he should not be liable for any of her debts, he should not be heard to complain of the amount so fixed, especially in the absence of a fair and full statement to the court of his faculties. Even without such a provision in the contract, the defendant was protected against any liability for his wife’s debts. Aspinwall v. Aspinwall, supra. In 1 Bish. Mar. & D. 580 it is declared to, be the law that if the wife

"engages to accept a small sum, which is paid her, though the sum be wholly inadequate, still so long as the separation continues on this footing she cannot pledge his credit for anything, however much she may stand in need of the credit.”

The defendant has not met the burden of proof which his defence has assumed on this branch of the case, and has utterly failed to show that his income from his business was not sufficient to enable him to supply therefrom any deficiency of the rents needed to satisfy his covenanted payments.

Again, under the circumstances of the transfer of this property to the defendant and his assumption of the exclusive possession of the joint properties, he was bound to use at least ordinary eare and diligence in its management, and cannot ask a court of equity to release him from losses of rental income in consequence of the want of such care. If, by his own fault,,the rents fell short of their usual and former yield, he should not be heard in his defence of the alleged “hardship” of the contract. Upon this point I shall quote from the testimony of his housekeeper, John Barnecker, who had charge of the houses, and which I shall assume to be correct because the defendant, although afterwards recalled to the witness-stand, made no attempt either to contradict or explain it. This testimony was given as follows, viz.:

“Q. What was the cause of that [the non-filling of the houses] ?
“A. Mr. Buttlar would not repair the houses, inside or out; no carpets on the stairs; there was old oilcloth on the halls; and he would not do any repairing to them, and of course I could not.
“Q. Were there tenants willing to go in providing that was done ?
“A. Yes, sir; and some would have staid in if Mr. Buttlar done some repairs to them.
“Q. (By the court). That is, were willing to go in if he would fix them up ?
“A. Yes, sir.
“Q. But refused to go in in their present condition?
“A. Yes, sir.
“Q. (By Mr. Weller). And did you tell Mr. Buttlar ?
“A. Yes, sir; two or three times.
“Q. What did he say?
“A. That he would not do anything until they were rented, and not before.”

No one having the slighest experience in the renting of houses would expect parties either to become or remain tenants under appearances so forbidding unless definite promises of improvements were made by the owners to intending tenants previous to their occupation under the contract of renting. Such promises the housekeeper swears, without contradiction, he vainly endeavored to obtain from the defendant, and resulted in the refusal of tenants to occupy. Without extending this opinion unduly into further details of the evidence it is sufficient to add that the defence of hardship interposed to the enforcement of the payment by the defendant of the sums of money provided for in the writing, is not sustained.

The only other ground upon which the decree below is rested is that the defendant offered by his answer and evidence to resume marital relations with the complainant. Passing the question of the appropriate practice to be pursued, and dealing with it as if a cross-bill had been duly filed by the defendant and the complainant had the benefit of her answer upon the record, the evidence offered in support lacks requisite corroboration, if indeed there is any legal evidence upon the subject. That part of the defendant’s case rests entirely upon his own testimony. He testifies that he made no offer, personally, to resume marital relations with the complainant, but that he “sent his friends” to make such an offer. ' He does not designate any person or persons as such authorized friends, nor does he state the date, or the terms, of any offer which he says he deputed them to make, nor does it appear that anyone ever in fact made any offer in his behalf to his wife upon the subject. But even if the evidence had clearly shown the communication of a bona fide offer at any time from the defendant to the complainant to resume marital relations with her, her right to recover in this suit the arrears of payments due her under this agreement would not have been affected. The consideration of the contract having passed to the husband he could not, while still retaining it, and without offering to restore it, at will, relieve himself from the obligations assumed by him. Such attempt stands opposed to every principle of mutuality entrenched in the law of contracts.

The decree appealed from should be reversed and a decree rendered in favor of the complainant for the amount due according to the terms of the contract.

For reversal — Depub, Dixon, Garrison, Lippinoott, Gum-mere, Ludlow, Collins, Nixon, Hendrickson, Adams, Vredenburgh — 11.

For affirmance — Van Syckel, Bogert — 2.


author: Per Curiam. Van Syckel, J.

text:
    Wheeler & Wilson Manufacturing Company, complainant and appellant, v. Samuel Litwin et ux., defendants and respondents.
    [Filed March 7th, 1899.]
    S. gave to L. $500 with which to purchase land for her. ■ L. purchased land in his own name with the money thus given and with other money borrowed by himself on the security of the property. S. subsequently married L., who, having been sued before judgment recovered, conveyed the land to S. through O. — Held, that the conveyance might stand as security for $500 (that being the value of S.’s interest), and that beyond that it was fraudulent and void.
    On appeal from a decree advised by Vice-Chancellor Stevens, who delivered the following opinion :
    On December 2d, 1895, Samuel Litwin, as surety, joined with one Horwitz in a bond to complainant, the Wheeler & Wilson Manufacturing Company, conditioned for the faithful performance by Horwitz of his duties as its agent. Horwitz absconded shortly after this bond was executed, indebted to complainant. Thereupon complainant sued upon the bond, and on January 25th, 1896, recovered judgment in the district court. The judgment was docketed in the court of common pleas.
    The present suit is brought to set aside a conveyance of land made on December 23d, 1895, by Samuel Litwin to one O’Hagan, and by O’Hagan to Litwin’s wife, Sophie. The deed was made without consideration given at the time, and is fraudulent and void as against complainant unless the antecedent relations of the parties to the property were such as to have justified it. The facts relied upon in justification are these:
    On March 15th, 1893, Samuel Litwin took á conveyance of a house and lot on Broome street, the consideration being $6,850. Of this consideration only $350 was paid in cash. The balance was secured by two mortgages — one for $4,500, given by Litwin to a building loan association, and the other for $2,000, given by' him to the vendor. The bonds given in each case were given by Litwin alone. On June 30th, 1894, he exchanged this property for property on "William street. The consideration for the William street property was the Broome street property (subject to the above-mentioned mortgages), and, in addition, $150 in cash. The William street property was also encumbered by mortgages, one of which was made by Litwin. I think the evidence shows that the $350 paid on the first'conveyance and the $150 paid on the second conveyance were the moneys of Sophie. She was engaged to Litwin when she gave him the moneys, but was not married to him until 1896.
    The question in doubt is whether the money was lent to him in such manner that he merely became her debtor, or whether it was entrusted to him by her that he might purchase real estate for her, in which ease she would have a resulting trust. It is difficult to come to a satisfactory conclusion on this subject. The parties concerned were of foreign birth, little education, young and inexperienced. They had no knowledge of the legal effect of their acts. In the view that I take of the case, the result would be very much the same either way. I am, however, inclined to think that Sophie entrusted Litwin with the money for the purpose of purchasing property for her. It was contended that if this were the true inference to be drawn from the facts a trust resulted as to the whole property. The argument was that the Broome street property was purchased for $6,850; that it was mortgaged, for $5,500, and that, consequently, Sophie’s money ($350) represented the entire value of the equity of redemption. This argument seems to me to be more plausible than sound. The evidence shows that Litwin borrowed from a building and loan association $4,500. This money was his when he borrowed it and his when he paid it to the owner of the property. Consequently, the interest acquired by it was his. In addition he gave to this owner his personal bond and a mortgage to secure the balance. The interest on the property to the extent of this bond must also have been his. It seems to mej therefore, plain that the trust resulting to Sophie was qnly in an interest represented by the fraction 350/gg5o. But in equity as between Sophie and Litwin there was this difference: Sophie’s interest was clear; Litwin’s was mortgaged to its entire value. When the Broome street property was exchanged for the William street property Sophie’s contribution, so far as the Broome street property was concerned, continued to be $350, there being no evidence of a change in its value, and she contributed in addition $150, so that the value of her interest in the William street property now became $500, while all of Litwin’s interest was, as before, encumbered by mortgages which he either gave or assumed the payment of. The amount of these mortgages was subsequently reduced, but how, Litwin’s testimony does not satisfactorily explain. If it was by compromise or by the use of rents it almost altogether redounded to Litwin’s benefit, because it freed his interest from some portion of the encumbrances. I think that, to the extent of an interest in the equity of redemption equal to $500, Lit-win’s conveyance ought not, in equity, to be deemed fraudulent or without consideration. It was testified to by Sophie and Litwin that she gave him other money. As to the $500 already mentioned, it is certain it was derived either from Sophie’s earnings or from Litwin’s, and no one, I think, can read the evidence without concluding that it is more likely that it came from Sophie’s than from Litwin’s. She was more steadily employed and she lived with her father, who was able to support her. Litwin, on the other hand, supported himself, and seems to have had no steady or remunerative employment while unmarried. But it is difficult to believe that as much money was accumulated by Sophie as she testifies to, or that if put away by her father in his trunk, to the amount of $1,500, as he states, he would have consented to her lending so large a sum to a young man like Litwin, who had given no evidence of business ability, aud absolutely without security.
    The conveyance may stand as security for $500, which, I think, is all that the evidence will justify me in finding as the value of Sophie’s interest. It will be declared fraudulent and void as to complainant with this reservation.

      Mr. John 1. Weller, for the appellant.

      Mr. Thomas Anderson, for the respondents.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

Van Syckel, J.

(dissenting).

On the 2d of December, 1895, Litwin became surety on a bond given to Wheeler & Wilson, the complainants, and made oath on the bond that he owned property at No. 157 William street, Newark.

Judgment was recovered January 25th, 1896, by the complainants on this bond, but before judgment was entered Litwin, through a third person, conveyed the said property to his wife by deed dated December 23d, 1895.

The bill was filed to set aside this conveyance to the wife.

The vice-chancellor decided that the conveyance to the wife should stand as security to her for the sum of $500, which he found she had advanced to her husband to buy the property, and that it should be set aside subject to such lien for the benefit of the wife.

The case clearly shows that the wife knew when she furnished the money that the title to the property purchased was taken in the name of her husband, and it was permitted to remain in his name until a short time prior to the rendition of the aforesaid judgment.

In my judgment the decree is erroneous in preferring the wife to the creditor.

The wife put it in the power of the husband to defraud his creditor by holding himself out as the owner of the property. The creditor, in this case, relied upon the apparent ownership of the husband, and the wife is therefore estopped from setting up her claim. The cases are to that effect. Ruckelschaus v. Oehme, 3 Dick. Ch. Rep. 436; Ruckelshaus v. Borcherling, 9 Dick. Ch. Rep. 345; affirmed, 10 Dick. Ch. Rep. 589.

Chief-Justice Marshall, in Sexton v. Wheaton, 8 Wheat. 229, declares the law to be that a wife, who is herself the instrument of deception, or who contributes to its success by countenancing it, may with justice be charged with the consequences of her conduct.”

In application of that well-established doctrine, it was held in Besson v. Eveland, 11 C. E. Gr. 468, and in City National Bank v. Hamilton, 7 Stew. Eq. 158, that if a wife permits her husband to take title to her lands and to hold himself out to the world as the owner of them, and to contract debts upon the credit of such ownership, she cannot afterw'ards, by taking title to herself, withdraw them from the reach of his creditors and thus defeat their claims.

For this reason I am constrained to dissent from the opinion of the court.

For affirmance — Depue, Dixon, Garrison, Lippincott, Ludlow, Collins, Bogert, Hendrickson, Adams — 9.

For reversal — The Chief-Justice, Van S yokel, Gum-mere, Nixon, Vredenburgh — 5.


author: Per Curiam.

text:
    Thomas H. Stewart, petitioner and appellant, v. Cornelia G. Stewart and Charles F. Stewart, respondents.
    On appeal from a decree of the ordinary, whose opinion is reported in Stewart v. Stewart, 11 Dick. Ch. Rep. 761.

      Mr. Thomas F. Noonan, Jr., for the appellant.

      Messrs. Miller & Myers, for the respondents.
   Per Curiam.

Decree unanimously affirmed, for reasons given by the ordinary, with costs to the respondents.

For affirmance — The Chief-Justice, Depue, Van Syokel, Dixon, Garrison, Gummere, Ludlow, Collins, Nixon, Hendrickson, Adams, Vredenburgh — 12.

For reversal — None.


author: The Chancellor.

text:
    Samuel H. Grey, attorney-general, ex rel. Henry P. Simmons et al., informants, and Henry P. Simmons et al., complainants, v. The Mayor and Aldermen of the City of Paterson.
    [Filed March 6th, 1899.]
    1. Owners of land on the banks of a stream are entitled to have the water flow to them unpolluted.
    2. Owners of different parcels of land on the banks of a river may join as complainants to enjoin the discharge of sewage polluting the river. Such a joinder is not precluded by the fact that one of the owners is a large city, alleging special injury, occasioned by the fact that a valuable pumping plant erected on the banks of the river, as a means of supplying the city with water under a grant from the state of a right to take pure water from the river, is rendered worthless.
    3. Pollution of a river by the discharge of city sewage gathered from a large area, and caused to flow into the stream by artificially-constructed grades, cannot be justified as a natural and reasonable use of the river.
    4. The act (P. L. of 1868 p. 106) authorizing the city of Paterson to discharge its sewage according to maps exhibiting sewer outlets in the Passaic river, does not license the city to create a nuisance by discharging such quantities of sewage as will pollute the river.

      5. Riparian owners who sue to restrain a city from discharging sewage into a river as soon as the sewage begins to contaminate the waters are not guilty of laches.
    6. Delay of three or four years after such contamination had commenced is excused by P. L. of 1896 p. SO, appointing commissioners to suggest a meaus of dispensing with the necessity of discharging sewage into the river, as the owners might reasonably suppose that an injunction would be unnecessary.
    7. In a suit by riparian owners to enjoin the discharge of city sewage into a river, the owners of the houses connected with the sewers are not necessary parties. If they were proper parties, the fact that they are very numerous and could be represented by the city is a sufficient excuse for not making them defendants.
    8. Equity will enjoin the contamination of waters creating a public nuisance, though redress may be had on indictment by abatement of the nuisance.
    9. Pending a hearing in a suit to enjoin a city from discharging sewage into a river, an injunction may be granted restraining the city from increasing the discharge where the potableness of the water is destroyed and noxious smells arise from the polluted water, which produce general discomfort to the inhabitants along the river, but the city will not he enjoined from continuing to discharge sewage until it has had a reasonable time to provide other means to dispose thereof.
    On order to show cause why a preliminary injunction shall not issue, and on demurrer to the information and bill.

      Mr. John P. Stockton, Mr. James B. Vredenburgh and Mr. George J. McEwan, for the attorney-general, relators and complainants.

      Mr. Eugene Stevenson, for the defendant.
   The Chancellor.

This suit .is brought by the attorney-general on the relation of twenty-four persons, who are also complainants, by information and bill, to restrain the city of Paterson, a body corporate of this state, from discharging its sewage into the Passaic river, which flows through that city. The relators and complainants, are riparian owners of lands upon the Passaic river below the city of Paterson. By certain allegations it appears that at least two of them are riparian owners above what is called the Dundee Dam,” constructed across the river below the city of Paterson a fev^ hundred feet above the ebb and flow of the tide in the river. The information and bill do not definitely disclose the location of the properties of the other relators and complainants or their situation with reference to the tidewater, except in case of the mayor and aldermen of Jersey City. In that case the property is said to be located upon the bank of the river at Belleville, where, as a matter of common knowledge, the court will notice that the tide ebbs and flows and the water is yet, but for the contamination now complained of, fresh and potable.

The information and bill, however, complain generally of injury to specified rights of the other relators which they could not suffer except through riparian ownership above the ebb and flow of the tide and thereby it indirectly alleges such ownership; perhaps not with sufficient certainty, but no suck cause of demurrer is assigned.

The common complaint of the relators, complainants and attorney-general is that since 1890 the sewage of Paterson, in constantly-increasing quantities, has been emptied into the Passaic river by the defendant, so that now the daily discharge from its sewers into the river is about seventeen million gallons of refuse and filth consequent upon a population of about one hundred thousand persons, the effect of which discharge is to so pollute the waters of the stream that noxious and offensive odors continually arise therefrom, detrimental alike to the health and comfort of the complainants and relators and the general public in the neighborhood of the river, and so also pollute them that they have become unfit for drinking by either man or beast and for bathing or any domestic use. Thus the complainants are specially injured by deprivation of their rights as riparian owners, and with the public generally by the discomfort and ill health occasioned by the noxious and offensive odors.' The complainant Henry P. Simmons urges that he is specially injured in the destruction of an ice business he has established upon part of his wife’s riparian land overflowed from the river, and the complainant, the mayor and aldermen of Jersey City, claiming a right in virtue of statute to take from the Passaic river and Belleville a supply of pure and wholesome water” for the inhabitants of Jersey City, represents that the pumping plant it has erected at a great expense upon its riparian land at Belleville, has been rendered useless by the pollution complained of, and that the inhabitants of Jersey City, of whom it is the corporate representative, are injured by being deprived of a pure and wholesome supply of water for their ordinary uses.

Assuming that all the complainant relators except the mayor and aldermen of Jersey City are owners of portions of the banks of the river above the point to which the tide goes, their ownership extends to the middle of the stream (Attorney-General v. Delaware and Bound Brook (Railroad Co., 12 C. E. Gr. 1, 8, 631; Cobb v. Davenport, 3 Vr. 369), and they are entitled to have the water flow to them unpolluted, that they may use it for their ordinary domestic purposes and, within reasonable limits, for business or other purposes. Holsman v. Boiling Spring Bleaching Co., 1 McCart. 335; Attorney-General v. Taylor, 5 C. E. Gr. 415 ; Gould Wat. 205 et seq. Their commoa injury, beyond the discomfort and ill health occasioned by the noxious and offensive odors arising from the M'ater, is in the pollution and consequent deprivation of the uses of the M’ater to which they have a right.

The mayor and aldermen of Jersey City, merely as riparian owner upon a tidal stream, has no right in the waters of the stream distinct from the rights of the general public therein. The adjacency of its property to the M'ater merely affords convenience in the enjoyment of the common rights. The water and the land under it, where the tide ebbs and flows, is the-property of the state subject to the right of navigation. Stevens v. Paterson and Newark Railroad Co., 5 Vr. 532; Newark Aqueduct Board v. Passaic, 18 Stew. Eq. 393, 397. But as grantee of the state, of the right to take pure and wholesome-M'ater from the river at the location of its pumping plant for the uses of the inhabitants of Jersey City (P. L. of 1852 p. 419), it suffers special injury from the pollution of the stream. That injury lies not alone in the depreciation of the value of the plant erected for the purpose of utilizing the right given by the statute but also in the deprivation to the inhabitants of Jersey City of the use of the waters of the Passaic river, for whose benefit the grant was made and whom the corporate relator and complainant represents.

Thus it appears that the pollution of the Passaic river affects injuriously all the relators and complainants in depriving them of their respective lawful uses of it.

It is objected by the demurrer that the relators and complainants, being the owners of distinct parcels of land aloDg the Passaic, cannot join in such a suit as this. From what has been said of the allegations of the bill it is perceived that they all suffer a common injury — the loss of the same pure and wholesome water and the substitution for it of a polluted and offensive water, from a single cause — pollution from the Paterson sewers, for which one redress is sought in this suit — the stoppage of such pollution. The same is true as to the baneful effect of the noxious odors that arise from the polluted waters. Until the mayor and aldermen of Jersey City ceased to make use of their pumping plant the smells from the water affected all complainants, even the inhabitants of Jersey City, through the water delivered to them in the same way, and now affects all other complainants than the mayor and aldermen of Jersey City in this way.

The contention is that the injury to each complainant and relator is distinct in that the parcel of land of each is affected ■independently of the others. The import of the insistence is illustrated in the ease of Marselis v. Morris Canal Co., Sax. 31, where several persons, having distinct and independent interests, joined as complainants to prevent the entry of the defendant corporation upon their several parcels of land and excavating the same for the purpose of making a canal without making compensation to the complainants respectively for their several properties. Each complainant there had a’ distinct and independent cause of complaint, to wit, for the excavation of his or her lot, which was in nowise injurious to his or her co-complainants. As Chancellor Vroom there said, there was no general right to be established and no common interest in all the complainants centering upon the point in issue in the cause — no general right claimed covering the whole case.” In the same trend is Hinchman v. Paterson Horse Railroad Co., 2 C. E. Gr. 75, where owners of distinct parcels of land abutting on Market street, in Paterson, asked for an injunction to restrain the building of a horse railroad in that street because it would obstruct the use of the street and injure the value of abutting properties and take portions of the several complainants’ respective .parcels of land for public use without just compensation, Chancellor Green declared that the complainants sought to enforce several distinct claims and not to enforce a common right nor to obtain relief against a common wrong. And in Morris and Essex Railroad Co. v. Prudden, 5 C. E. Ch. 530, where.the court of errors and appeals held that several proprietors of distinct plots of land fronting upon a highway were improperly joined as relators in an information by the attorney-general to restrain the operation of a steam railway running longitudinally through the highway upon the ground of injury to each in the enjoyment of his-property, and in Demarest v. Hardhan, 7 Stew. Eq. 469, where Vice-Chancellor Van Fleet held that the owner and lessee of a building shaken by a steam engine in adjoining property, were misjoined in a bill to restrain the operation of the engine, the one claiming injury to his building and the other claiming injury to his business, and in Davidson v. Isham, 1 Stock. 186, where several owners of distinct tenements joined in a bill to restrain the operation of a drug-mill because of the offensive smokes and smells emitted, one of them also claiming injury because of the jarring of his buildings by the operation of the machinery in the drug-mill. In this case,, however, the suit was retained because of the alleged common injury from the smokes and smells. After the decision in the Prudden Case, supra, Chancellor Zabriskie, in virtue of the powers vested in him by law, promulgated this rule of court, now numbered 132 : “Any number of persons severally owning or possessing distinct tenements, injuriously affected by a common nuisance or other common grievance, may join in a bill for injunction or relief, provided that it shall be in the discretion of the chancellor to strike out of the bill any of such complainants, when, in his opinion, the justice of the case or convenience of proceeding shall require it.” It cannot be questioned that in case of a slaughter-house erected in a populous part of the town, emitting offensive and deleterious odors that are diffused throughout the neighborhood and contaminate and pollute the air, all injuriously affected may join in the same suit, for in such a case the injury is clearly a common one and the object of the suit is to give protection to each suitor in the enjoyment of the common right of all, to pure, uncorrupted air. In Rowbotham v. Jones, 3 Dick. Ch. Rep. 337; S. C. on appeal, 3 Dick. Ch. Rep. 311, two owners of distinct dwellings were held to have properly joined in a bill for injunction to restrain the operation of a neighboring lunatic asylum, from which lunatic patients were permitted to wander unattended, and in which such patients were accustomed to scream loudly and distressingly for great lengths of time, and to indecently expose their persons at the windows of the asylum, the injury being a common one, affecting each in the same way though not at the same moment, in the enjoyment of his property.

In Reid v. Gifford, Hopk. Ch. 416, a watercourse was diverted from its old and natural channel, and the several owners of distinct parcels of land upon the old channel united in a bill to restrain the diversion. Chancellor Sanford, in holding that the complainants had properly joined in their bill, expressed himself in this language: “The complainants are several proprietors of distiuct lands and mills and of separate parts of the natural watercourse; and the defendants object that these complainants, having distinct rights, cannot join in this suit. This objection seems more specious than solid. The rights of the several complainants to their respective lands are indeed distinct, but the grievance in question is a common injury to all the complainants. The water in its natural descent from fhe lake becomes the property of each of the complainants successively; all the complainants thus have right in the same subject, and the nature of the case forms a community of interest in the complainants. One creditor may sue in equity for himself and other creditors having like rights, and yet the debts demanded are distinct and arise from separate contracts. The common claim of the different creditors to the same relief is considered in equity as one demand and separate suits are not necessary. The rule in equity is that matters which may be demanded by one suit must be of the same nature. This suit is founded on the injury done to all the complainants; the wrong is done or continued by all the defendants; it is a matter of one nature, and the relief sought by all the complainants is the same.”

In Ballou v. Inhabitants of Hopkinton, 4 Gray 824, Chief-Justice Shaw said : “Although the plaintiffs are several owners of separate and distinct mills injured by the alleged stoppage, diversion and waste of the water of Mill river, and to recover damages for which each owner must bring his several action at law to obtain a remedy for this particular injury, yet they have a joint and common right in the natural flow of the stream and in the reservoir by which its power is increased, and a joint interest in the remedy which equity alone can afford in maintaining a regular flow of the water of the reservoir at suitable and proper times so as best to subserve the equal rights of them all. The remedy in equity therefore would, by one decree in one suit, prevent multiplicity of actions.”

In Cadigan v. Brown, 120 Mass. 498, owners of several lots joined in a bill in equity to restrain a continuous and permanent obstruction of a passageway in which they had a right of way in common as appurtenant to their several estates. Upon the question whether they had properly joined in the suit,'the court said : “The plaintiffs, though they hold their rights under separate title, have a common interest in the subject of the bill. They are affected in the same way. by the acts of the defendants and seek the same remedy against them. There is no danger of confusion in the trial or of injustice to the defendants from the joinder of the plaintiffs, but the rights of all persons can be adjusted in one decree and a multiplicity of suits is prevented.”

The case considered is stronger in justification of joinder of the complainants than any of these. Each has the right to have the identical water reach him in its pure, natural condition, except as the proper domestic and reasonable uses of the riparian owners above him may affect it. Above them all a riparian owner, for its own advantage, deliberately defiles, pollutes and corrupts that water, so that when it passes to those below it is burdened with noisome stenches and is utterly corrupted and unfit for the uses they each had the right to make of it. Can they not join, as may those affected by the common air defiled by the smells of a slaughter-house, in an appeal to this court not to award each his damages but to stop the defilement?

The rule governing the joinder of complainants in a suit like the present is one of good order and convenience to prevent confusion aud the evils attendant upon it. I perceive no reason, founded either upon danger of confusion or danger of injustice, which should induce me to hold that the complainants or relators are misjoined in this case. It is true that the information and bill emphasize-the magnitude of the injury to Henry P. Simmons and to the mayor and aldermen of Jersey City, but nevertheless the injury to them is the common injury to the common right to pure and unpolluted water, differing only in degree from the injury to others according to the uses made of the right. But if administration of justice or if convenience shall hereafter so require, they or either of them may be stricken from the bill and information under rule 132.

It is objected also that the defendant has the right to empty its sewers into the Passaic river, whatever the consequences may be. This contention rests in part upon the ground that it is a natural and reasonable use of the river, and in part upon the insistence That legislative authority to the city of Paterson to construct sewers contemplated their discharge into the Passaic and impliedly authorized it.

The sewage in question, it is remembered, is discharged into a stream above tide and where the stream is not navigable. It does not naturally flow to the stream. It is gathered by the municipality of Paterson in sewers from numerous buildings, cesspools, culverts and drains, over a large area of land, and by uniform artificially-constructed grades is gravitated to and discharged into the river. It is vastly more than the mere natural drainage of riparian owners. I cannot conceive of any tenable ground upon which such drainage can be classed as either a natural or reasonable use of the river.. Upon this subject I need only repeat the language of Vice-Chancellor Pitney, in Beach v. Sterling Iron and Zinc Co., 9 Dick. Ch. Rep. 76, where, in treating of the drainage of a mine into a stream, he said: The argument was advanced by the defendant that the use of the defendant’s property for mining purposes is what was termed, unfortunately, I think, by Lord Cairns, in Fletcher v. Rylands, L. R. 3 Eng. & Ir. App. 330 (at pp. 338, 339) (1868), a natural user, and similar in that respect to plowing a field, and that if it be unlawful for the defendant here to cast into the stream the muddy waters from its miné, it is also unlawful for the farmer to plow his land and allow the muddy waters which run from it after a heavy rain to reach the river. But the very statement of the two cases shows the absence of analogy between them. In the first place, the water from the plowed field comes thereon by natural causes beyond the farmer’s control and runs by gravity to the stream, while in the case of the mine the wafer is, as here, found and raised by artificial means from a level far below that of the river, and would never reach it but for the act of the miner; and in the second place, by the common law of the land, every owner may cultivate his land without regard to its effects upon his neighbor, while such is not the law as lo-mining. The supreme court of Ohio, in Columbus Company v. Tucker, 48 Ohio 41 (at p. 58), repudiates the notion that mining was a natural use of land in the sense that farming is.

“ The ground of a reasonable natural user seems to be at the bottom of what was said in Merrifield v. Worcester, 110 Mass. 216, upon this topic. So far as the expressions there used favor the notion that a city or town may collect and discharge sewage-matter into a fresh-water stream, to the injury of a riparian owner without liability to action, they are contrary to the law as held in England for centuries. Higg. Pol. W. 127 et seq., where several cases besides those above cited are collected.”

I am referred by counsel to three statutes for the authority under which the sewers of the city of Paterson have been constructed — the first, “An act to authorize the construction off sewers and drains in the city of Paterson,” approved February" 26th, 1868 (P. L. of 1868 p. 126); the second, “An act to provide for the more efficient government of the city of Paterson (P. L. of 1871 p. 808), and the third, “A general act to authorize cities to construct drains and to provide for the costs thereof” (P. L. of 1882 p. 60); but I do not find that either of these laws makes reference to the ultimate disposition of the sewage or-to the use of the Passaic river for that purpose. The first of them does refer to maps theretofore prepared, and it is possible that those maps may exhibit sewer outlets for discharge of sewage into the river; but at present the maps are not in the case. And if it be assumed that the maps make such an exhibit it does not follow that the statutes mean to authorize a nuisance-The authority conferred is limited to mere construction of the-sewers in accordance with the maps. It does not license either public or private nuisance through pollution of the waters of the river. As to private rights, I need only say that they have-constitutional protection against any such legislative enact men tIn England, where the power of parliament is omnipotent in matters of this kind, both as to public and private rights, it is-well settled that legislative authority to merely drain into a. stream does not authorize the contamination of the water. Legislative license to create a public nuisance of the kind considered-' must be. given in express terms or by absolutely necessary implication. Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R. 1 Ch. App. 348; Attorney-General v. Birmingham, 4 Kay & J. 528; Attorney-General v. Leeds, 5 L. R. Ch. App. 583; Attorney-General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. App. 153; Clowes v. Staffordshire Potteries Water Works Co., L. R. 8 Ch. App. Cas. 125.

That the city of Paterson has any right to pollute the waters-of the Passaic river by the discharge of its sewage into them is clearly an untenable proposition.

It is further urged for the defendant that the relief asked' should not be afforded in equity because of the laches in this application. The allegations in the information and bill show that since about the year 1890 the city of Paterson has been discharging its sewage into the Passaic river in considerably-increasing quantities, and that since the year 1895 the waters of the river have been corrupted so as to create the nuisances complained of.

I do not perceive that the defendant has suffered by the delay of which it complains. It would seem that to it the delay has-been rather a benefit in relieving it of the expense of other, disposition of its sewage and in enabling it to consider the most-economical and advantageous way of ultimately making that disposition. The Passaic river, at Paterson, is a stream of considerable size, capable of receiving comparatively large quantities of refuse matter without becoming contaminated. Besides, :as appears by an examination of the case of Newark Aqueduct Board v. Passaic, 18 Stew. Eq. 393, in the flow of the stream .constant purification of water is going on. It follows that the mere discharge of sewage into the river by the defendant, a municipality acting presumably advisedly, did not justify an assumption that the discharges of sewage would be allowed to so increase as to create the nuisance complained of. The presumption would rather be that the defendant would not do that which •was unlawful. Attorney-General v. Leeds, supra. But from ithe time at which the contamination became an accomplished fact the duty of the relators and complainants was plain. Performance of the duty, however, was fraught with important con-sequences to the defendant as the representative of one hundred •thousand people to be affected, and as well to other municipalities ralong the stream. A difficult question in political economy was .presented — how five hundred thousand people living along the .river -were to be protected against their own sewage. This •question led the legislature of the state, in 1896 (P. L. of 1896 p. 20), to take the matter of the drainage of the valley of the Passaic river into its consideration and to enact a statute under •which commissioners were appointed to examine into the question presented and to suggest a solution of it. The sequel was ■that commissioners were appointed and they recommended the •construction of a trunk sewer that would carry all the drainage -then poured into the Passaic to the Newark bay. I think that the effect of this action upon the part of the state induced the hope of an amicable termination of the grievances to which the •complainants and relators were subjected and suggested an -avoidance of the undertaking involved in this suit, and it seems to me that it suffices as an excuse for what delay there has been •in making this application.

Another objection made by the demurrer is that owners and occupiers of houses in the city of Paterson connected -with the sewers constructed should be made parties to this application. 'The sewers do not belong to those persons. They are the property of the defendant, and the defendant is charged with the •duty of keeping them in repair and suitable condition to afford .drainage for the properties connected with them. The question considered is not the destruction of the sewers, but as to the-disposition of the sewage they are designed to carry off. Moreover, if those who have paid for the sewers by assessments, 01-their grantees, are proper parties, the fact that they constitute a very numerous body and are well represented by the defendant, their trustee, is a sufficient excuse for not making them defendants.

I will overrule the demurrer, with costs.

It remains to determine what disposition shall be made of the order to show cause herein why a preliminary injunction shall not issue. The complainants ask that it shall not only prevent any increase of the quantity of the sewage discharged into the* river by the defendant, but that it shall at once stop all discharge of sewage by the defendant into the river.

The defendant objects that although the jurisdiction of this-court in matters of nuisance, public and private, is well established,, the jurisdiction does not rest upon the mere fact that nuisance-exists, but upon the lack of adequate remedy at law in the given case, and that the court will not exercise its jurisdiction if the-object may as well be obtained in the ordinary tribunals; that-in this matter, upon indictment adequate redress by abatement of the nuisance complained of may be had. The rule invoked has-been repeatedly recognized and applied in this state in cases of alleged obstruction to navigation (Attorney-General v. New Jersey Railroad and Transportation Co., 9 Gr. Ch. 136 ; Attorney-General v. Paterson and Hudson Railroad Co., 1 Stock. 526 ; Attorney-General v. Delaware and Bound Brook Railroad Co., 12 C. E. Gr. 1); and in cases of encroachments upon public highways, (Attorney-General v. Heishon, 3 C. E. Gr. 410; Attorney-General v. Brown, 9 C. E. Gr. 90 ; Morris and Essex Railroad Co. v. Prudden, 5 C. E. Gr. 530 ; Inhabitants of Woodbridge v. Inslee, 10 Stew. Eq. 397; Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11); but I do not find a case in which-it has been applied where physical discomfort and ill health are-in question. On the contrary I recall two cases, Babcock v. New Jersey Stock Yard Co., 5 C. E. Gr. 296, 299, and Attorney-General v. Steward and Taylor, 5 C. E. Gr. 415, in which it was held in this court that the contamination of waters so as to--create a public nuisance would be restrained. So the course of the equity tribunals in England is to interfere in such cases. 'The defendant has presented affidavits which, with the affidavits .annexed to the bill, show very conclusively to my mind that if .an intolerable nuisance does not already exist above the Dundee dam, a pollution that is well-nigh intolerable does exist, and that it is principally caused by the defendant’s sewage. Some filth .flows into the river directly from factories in the city of Paterson, .but the bulk of the polluting matter above the Dundee dam comes from the defendant’s sewers. Below the dam, where the tide ebbs ¡and flows and sewage from other cities and towns and factories may be washed by the tide up the stream, it is more difficult to say that the stoppage of the drainage of the defendant’s sewers into ■the river would abate the nuisance. A large portion of the filth ■there comes from cities and towns whose combined sewage is more than double that of the city of Paterson. As I calculate from the data before me, the volume of the pure water in the Passaic river below tidewater is upon the ratio of one hundred millions -of gallons to between sixty and seventy millions of gallons of filth. The proofs appear, to indicate that both above and below the Dundee dam the potability of the water, without the use of some means of purification, is destroyed, and also that noxious smells arise from the polluted water, which, though perhaps not yet unhealthy, produce general discomfort to the inhabitants along the river, and that with the ever-increasing'sewage of the -defendant must come a corresponding increase of discomfort and presently disease. In this situation it appears to be very plainly my duty to take cognizance of the case and now restrain the -defendant from doing anything that will increase the quantity of its sewage pending final hearing herein. Attorney-General v. Litton Local Board of Health, 2 Jur. (N. S.) 180, 182. Further relief should await the final hearing, not only because full and ■final relief should be withheld until then (Pennsylvania Railroad Co. v. National Docks, &c., Railway Co., 8 Dick. Ch. Rep. 178, 194, admit of all possible light being thrown upon the • subject, but because of the impossibility of immediate provision of other means for the disposition of the sewage. The legislature, since 1896, has had its commission engaged in efforts to solve the question what should be done with the sixty or seventy millions of gallons of sewage now draining into the river without satisfactory result, and it would not be just to require the defendant to act upon this difficult proposition without •reasonable time for deliberation. The English courts have so treated cases of this kind. Attorney-General v. Colney Hatch Lunatic Asylum, supra. So, also, this course was adopted in Morgan v. City of Danbury, 67 Conn. 484.

An injunction may issue, as indicated.