author: Church, Y. C.

text:
    Fannie Schecktman, complainant, v. Morris Schecktman, defendant.
    [Decided January 4th, 1924.]
    1. Where money is deposited in a- bank in the name of a wife,although given to her by her husband, it belongs to the wife.
    2. Where money is given by a husband to a wife, and later given back to the husband by the wife, and deposited by the husband in his own name, it belongs to him absolutely.
    On rule, &c.

      Mr. Harry Castelbaum, for the complainant.

      Mr. Benjamin M. Weinberg, for the defendant.
   Church, Y. C.

This is an action to decide the ownership of certain moneys standing in the name of the defendant, which the complainant claims as hers.

The defendant came to this country in 1906. He put some moneys in a savings account and in 1912 he purchased ten shares of stock in the Uptown Building and Loan Association, which stock he matured a short while before the bill in this case was filed. In August, 1915, he opened an account in the Howard Savings Institution, with a deposit of $500. Both the purchasing of the building and loan shares and the opening of the account in the Howard Institution preceded his marriage to the complainant. Later on he opened an account with the American National Bank and in 1921 purchased other shares in the Uptown Building and Loan Association. He married the- complainant on the 25th of December, 1915, and continued to live with her until on or about April 16th, 1923.

The contention of the complainant is that from the time of the marriage the defendant gave to her all his wages except a small sum, which he kept for his personal expenses. She gave him moneys from the sums received from him, which he deposited in his own name in the savings banks; and also made pajunents on the building and loan stock standing in his name. Tie says that he made these deposits himself. She admits that he made the deposits in the savings banks, but says that sometimes she paid the building and loan.

Defendant denies that he gave all his money to his wife, but says that he gave 'her a reasonable amount for running the house and that he paid the rent, bought her her clothes, &c.

The complainant insists that the moneys standing in the name of the defendant in the savings banks and in the building and loan are hers absolutely.

With this contention I cannot agree. The cases cited in the brief for the complainant are all based on the fact that the money was deposited in the name of the'wife, although given to her by her husband. In such a case the presumption is that the moneys belong to the wife; but in this case there is a different situation. The moneys are in the name of the husband, and the presumption therefore is that they belong to him, and the burden of proof is upon the complainant to show that they are actually hers.

Taking her own story to be true, it appears that even though the defendant gave her all his savings she gave back to him certain sums and knew that he was depositing them in his own name.

I, therefore, find that the money in the Howard Savings Institution and the American National Bank, as well as the building and loan shares in the Uptown Building and Loan Association, standing in the name of the defendant, belong to him absolutely, and I will advise a decree directing that the bank books and building and loan books be turned over to the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Garbarine et al., complainants, v. Walter Reade et al., defendants.
    [Decided January 7th, 1924.]
    Where a lease contained a covenant against subletting without the consent of the lessor, and the lessee sublet the premises without such consent, receipt of rent thereafter by the lessor from the assignee bars him from asserting that the lease is void for that reason, and amounts to a ratification of the assignment of the lease.
    On bill, &C.

      Messrs. Young & Bigelow, for the complainants.

      Messrs. Durancl, Ivins & Carton, for the defendants.
   Church, Y. C.

This is a bill for specific performance of a covenant to renew a lease.

The lease between the defendant Reade and the defendant Rosasco as leasee involved a store at 21 South Main street, Asburv Park, for the term of two years, expiring June 1st, 1923. It contained the following covenants inter alia:

“And the said party of the second part agrees and covenants not to let or re-let the whole or any part of said premises nor assign this indenture of lease without the written consent of the said party of the first part under penalty of forfeiture and damages.
“And it is further agreed that if the said party of the second part shall fail or neglect to perform any of the covenants or agreements above mentioned, then the tenancy shall, at the option of the party of the first part, immediately expire, and the said party of the first part may re-enter the premises and eject all persons therefrom.
“The said party of the second part may have the option of renewing this lease for a further period of three years from the expiration thereof at the rent of $2,000 per annum upon executing a satisfactory lease therefor on or about December 1, 1922, six months prior to the expiration of this lease.”

On August 31st, 1922, Rosasco and another sold their "“store and fixtures and lease and stock” to* the complainant. Since that time thé complainants have been carrying on business on these premises. Every month complainants paid their rent in advance to the defendant Reade.' Payment was made by check to the order of Walter Reade; checks were delivered to Reade’s cashier; she testified that she deposited them, ’and this is borne out by the endorsement on the checks to the credit of “Walter Reade, Main Street, Theatre Account.” It should be noted that the store is in the same building as the Main Street Theatre. The cashier sent to Reade duplicate deposit slips. He used the money thus turned into him and finally told the complainant that he was not willing to renew the lease, and that because he had not consented in writing to the assignment, the assignment is void and he should not be compelled to renew.

1 agree with the solicitor for tlio defendant that the issue is one of fact as to whether Reade, by his method of accepting the rent payments, acquiesced in and ratified the assignment of the lease to the complainant. I think he did.

I will therefore grant the prayer of the complainants.


text:
    Caledonian Insurance Company, complainant, v. North Dutch Reformed Church, defendant.
    [Decided January 11th, 1924.]
    AVIhere an award was made by appraisers appointed by the parties and an umpire appointed by the court of common pleas, this court should not go into the technicalities of the appraisals and attempt to review the opinion of men who are admittedly qualified and perfectly capable of coming to a proper decision, when the award was in accordance with law and was reasonable and without fraud.

      Messrs. Lum, Tamblyn & Golyer (by Messrs. Ernest G. and Ralph E. Ltm), for the complainant.

      Messrs. Osborne & Astley, for the defendant.
   Church, Y. C.

On the 27th of December, 1922, the North Dutch Eeformed Church of Newark was damaged by fire. It was insured in fourteen insurance companies to the amount of about $160,-000. Thirteen of these settled after the general adjustment bureau, an organization to arrange such matters, had considered the question. The Caledonian Insurance Company, the fourteenth insurer, disagreed with the figures and declined to join with the others in paying.

Under agreement the church appointed one appraiser, the insurance company another, and they being unable to agree on a third, Mr. Oakley W. Cooke was appointed by the court of common pleas, under the statute, as an umpire. They met several times, made certain figures and appraisals, and finally a report was signed by Mr. Cooke and the appraiser appointed by the church, the appraiser of the insurance company declining to sign. This award was less in amount than that agreed to by the other insurance companies. The amount in dispute is approximately $3,500.

The complainants contend that the umpire appointed by the court of common pleas is incompetent, but offered no evidence whatever to substantiate this. Moreover, his competency was abundantly proved at the hearing.

I shall, therefore, decline to remove the umpire, or question his ability.

The only point then remaining, as I see it, is whether the award as finally made was in accordance with the law and was reasonable and without fraud. There is no contention that Mr. Cooke acted in an improper or fraudulent manner. He is a man of high character and his judgment only can be challenged. I believe that the award was made substantially in accordance with the terms of the policies and the adjustment agreement. I do not feel that this court should go into the technicalities of appraisals and attempt to review the opinion of men who are admittedly qualified and perfectly capable of coming to a proper decision. The fact that the thirteen other insurance companies settled for a higher figure than that in dispute seems to prove that the award, as a matter of fact, was reasonable.

As I understand it, this church is entitled, under the policies, to have the appraisers estimate the cost of having the edifice restored to the same condition in which it was before the fire occurred. To cite one or two instances where the evidence varies, mention was made of some girders that were damaged by fire. The report as filed provided for new girders. The fact that the church did not replace these girders, but repaired the damage, does not seem to me important. They could have done either one of two things, replaced the girders or repaired them; but, in any event, they were entitled to the value of the replacement. The same can be said of the stained glass window, and in this connection I might remark that to say that a stained glass window which cost $12,000 and which was imported from abroad can be replaced for approximately $2,000 seems to me ridiculous. Neither can I see any benefit in re-referring this matter and having the umpire proceed in a more elaborate and technical manner. His competency being proved, this court cannot compel him to change his figures, and his second report would not, I presume, vary materially from his first. Neither would it be practical to refer the ease to anyone else. The church is now restored in every particular, all evidences of damage by fire have been removed, and it would be idle for anj^one other than the original appraisers to try now to ascertain what the damage was when all evidence of it has been eliminated.

I will therefore advise a decree dismissing the bill.


author: Church, V. C.

text:
    Athan Tsangas, complainant, v. Nick Broogos, defendant.
    [Decided January 16th, 1924.]
    1. Wlliere a party covenanted that lie would not enter the restaurant business “within ten city blocks” of the complainant’s place of business, such covenant is too uncertain and indefinite to entitle the complainant to an injunction against its violation.
    2. Messinger v. Wranzb'imi, 118 Ail. Rep. $60, followed.

      Mr. William Harris, for the complainant.

      Mr. Natha,n 11. Berger, for the defendant.
   Church, V. C.

This is a case which involves the construction of a clause in an agreement which reads as follows: "The part]' of the first part agrees not to enter the same business within ten city blocks.” The complainant seeks to restrain the defendant from engaging in the restaurant business at 174 North Broad street, Newark, or any other place within ten city blocks of the complainant’s business.

It is admitted that defendant is in the restaurant business at that address. It seems to me that, in so far as this court is concerned, the question is res adjudiccda, under the case of Messinger v. Franzblau, which was decided by "Vice-Chancellor Backes and reported in 118 Atl. Rep. 260.

In that case the covenant was not to engage in the same business within an area of ten city blocks. I cannot see that there is any material difference between the words “ten city blocks” and “an area of ten city blocks,” and I therefore feel compelled, under the decision above cited, to advise a decree for the defendant, with costs.


text:
    Bertha Hoffman et al., complainants, v. Frederick Rauchmiller et al., defendants.
    [Decided December 24th, 1923.]
    1. Where payment on account of the principal of a mortgage is claimed the burden of- proof is on the defendant to establish such payment, a receipt is only prima faoie evidence of payment, and the payment evidenced by it may be rebutted.
    2. Evidence examined, and held that the receipt in question is a forgery.
    On bill, &c.

      Messrs. LehTbach, Johnson & Ormond (by Mr. Johnson), for the complainants.
    ilir. Merritt Lane, for the defendants.
   Church, V. C.

This case was for the foreclosure of a mortgage between the parties and-the sole question involved is one of fact. That is, did the defendant, on or about October 1st, 1921, pay to the complainant the sum of $3,000 on account of the principal of the mortgage? It appears from the testimony that on or about the day the defendant went to the home of 'the complainants and made some payment. On the next interest day he appeared and offered a smaller sum as interest on the remainder of the mortgage, which he claimed was $500, he saying that on October 1st, 1921, he had paid $3,000 on account of the principal. The complainant denied that the defendant had paid $3,000 on account of principal, and therefore this suit.

The defendant produced in court a receipt signed by the complainant for $3,087.50. He produced a check Cor $87.50, which, admittedly, was the interest. He produced also a receipt signed by Hoffman, apparently, for $3,087.50. Mr. Hoffman says that he never received the $8,000. He says as to the receipt that it looks like his signature; he is not sure.

I- questioned the defendant as to why, if he had, as he testified, sufficient money to pay the whole thing in cash he did not do so and why he elected to. pay the larger sum in cash and the smaller sum by check. His explanation is not satisfactory. The whole case, it seems to me, turns on the question as to whether or not the receipt supposedly signed by William Hoffman was really signed by him. The burden of proof of ■ payment is upon the defendant. A receipt is only prima facie evidence of payment and the payment as evidenced by it may be rebutted.

I directed that handwriting experts should be produced before me to testify as to whether the signature of William Hoffman was or was not genuine. The handwriting experts produced for the complainants had evidently given the case the most careful consideration, and, in their opinion, the signature was a forgery. The expert for the defendant, a very distinguished handwriting expert of unquestioned reputation, had evidently given very little consideration to the case, and his testimony dealt very largely in generalities and showed that he had not made a careful consideration of the signatures.

Another fact that impresses me is this, that there is no record that the $3,000 claimed to have been paid was ever deposited in any bank to the credit of the complainant. I am impressed with the sincerity and truthfulness of the complainant and his wife and of the rather evasive manner of the defendant on the witness-stand.

I have come to the conclusion that the signature on the receipt is a forgerjr and that on October 1st, 1921, the defendant only paid to the complainant the sum of $87.50.

I find, therefore, that $3,500 is due on this mortgage, with proper interest.


author: Churci-i, V. C. ■

text:
    Frederick T. Hey et al., complainants, v. Seifert & Baime, Incorporated, defendant.
    [Decided December 21st, 1923.]
    1. To enjoin the prosecution of a perfectly legal business on account of the noise made in conducting it, the evidence should be clear and convincing. Where the injury is irreparable, as the loss of health or trade, this court will intervene.
    2. Where a business lias been conducted, at one place for a period of seven years and the evidence as to its being so conducted as to cause a nuisance is contradictory this court will not enjoin its prosecution, as such action would practically destroy a going concern.
    3. Where a complainant has made no effort to abate what he considers a nuisance for a period of seven years he is estopped from coming into this court and asking for relief.
    On bills, &C.

      Mr. John Trier, foi* the complainants.

      Messrs. Osborne & Asiley, for the defendant.
   Churci-i, V. C. ■

This is a final hearing in an injunction suit to restrain the operation of an hydraulic press contained in a one-story brick shop at 85 Arlington street, Newark. The building owned by the complainant is 87 Arlington street, also a brick building, about thirty-five years old. The two buildings are separated by a space of about six inches. The press in 85 Arlington street has been operated for about seven years. Defendant leased the building in the first instant for five years and renewed the lease about two years ago. The shop itself was built for the defendant, and it put in some considerable money for the installation of the press and is paying a considerable rental.'

The testimony in the case is somewhat contradictory. The witnesses for the complainant, all of whom live at No. 87, testify that they have lived for varying periods of time in the house. Mr. and Mrs. Kanne have lived there thirteen years, and still live there. Mary Radin, a former tenant, lived there for nine years, although she says the noise continued through all that time. There seems to be no evidence that the noise of the press was serious enough to drive any tenant from the building or to seriously injure it. There is some testimony that pictures fell oil the wall after a period of nine years, and a coffee pot fell off the stove. The ceilings fell also once or twice during the thirty-five years of the existence of the house. There is some testimony as to noise made by trucks passing through the street; but this, I think, is unimportant to the decision in this case.

One of the complainants testifies that the noise for the past two years from the press has not been as bad as it was before that time. To combat this testimony there were produced at least five witnesses, living across the street from the house, or immediately adjoining it, who said they could not hear the noise and were not disturbed by it. One of them testified that he frequently went into the building where the press was located to telephone, standing only a few feet away from the press, and was not disturbed in any way by the noise of the press. There is no evidence of damage to the health of any of the dwellers in the house. There has been some point made of the fact that the location of this property is entirely residential, but from a personal inspection of it I find that it is very near the center of the city of Newark and is largely given over to business. There is no monetary loss shower by the owner on account of the alleged vibration and noise. The evidence produced before me in this case is not so clear and convincing, to my mind, as to justify me in enjoining the conduct of a perfectly legal business. City of Elizabeth v. Gilchrist & Co., 36 N. J. L. J. 111, held in effect that when the testimony is evenly balanced the court will deny an injunction. And in Walcott v. Melick, 11 N. J. Eq. 204, the court held that only where the injury is irreparable, as a loss of health or trade, will the court intervene.

This business has been conducted at 85 Arlington street for over seven years, and I must infer that it has established itself in that locality^ as a going concern, and to enjoin the operation of this press would practically destroy the business.

The brief 'of the complainant states that, “If used within proper bounds it would no doubt give no cause for complaint; the trouble is caused by defendant using it in an improper manner”; and then, further on, “The question of fact in the case is thus narrowed down to the extent of the noise and vibration,” and, quoting again from the complainant’s brief, “We repeat, that defendant, if it wished to, would have no difficulty in preventing the noise and vibration.”

As I understand it, the prayer is for the complete cessation of the press, whereas the complaint seems to admit that the press can be run, under certain conditions, without annoyance to those living in No. 87.

The question of laches has also been raised, and, it seems to me, that inasmuch as the complainant has made no effort to abate what he considered a nuisance for over seven years, he is estopped from coming into this court and asking for relief. The complainant himself quotes the case of Meredith v. Sayre, 32 N, J. Eq. 557, the syllabus of which says; “Delay on the part of an adjoining owner until the work has been done in remonstrating against or trying to prevent the occupation of a street by a railroad company, with its tracks and shutes, &c., involving an immense outlay of money, will be fatal to his application for relief.” And again in Southard v. Morris Canal, &c., 1 N. J. Eq. 518: “It is very unusual for a party who has stood still and seen his adversary erect a nuisance at great expense and then permitted it to continue for a number of years without complaint, to come into this court for an order to prevent its continuance.”

What the courts may mean by an “immense amount of money” or by “great expense”.I am not prepared to say; but it is evident that this defendant has obligated itself to an amount which to it would be a very large sum. This obligation was entered into for a period of five years and was renewed for -a further period of two years, without any effort being- made by the complainant to come into this court for relief. It is true that protests were made and that an appli-' cation was made to the police to prevent it, which the police refused to do. And another application was made to the board of health of Newark to prevent it, which this board refused to do. This, it seems to me, indicates that the complainant should have and could have, if he so desired, come into this court on an application for an injunction at a much earlier period. He does not seem to have done so and, as he is a distinguished member of the bar, I cannot believe that he was ignorant of the fact that if a nuisance was being carried on he could have had relief in this court.

I find, therefore, as a fact, that there is not sufficient testimony before me, contradictory as it is, to warrant me in finding that a nuisance is being carried on at 85 Arlington street.

I find also, as a matter of law, that the complainant has stood by too long and allowed the defendant to continue to develop his business through too long a period to warrant his coming now into equity to seek relief.

I will, therefore, advise a decree dismissing the bill for an injunction;


author: Churci-i, Y. C.

text:
    Lillian M. Summers, complainant, v. Theodore Morley et al., defendants.
    [Decided January 21st, 1924.]
    1. Where one purchased lands in the name of another, alleging an agreement to convey them to her upon payment of $5, which agreement is denied by the grantee in the deeds, who alleges that the lands were a present to him, these facts are not sufficient to establish an express trust to reconvey the lands.

      2. Where a woman purchases lands in the name of another for the purpose of evading the payment of judgments against her, and after-wards comes into this court demanding conveyance to her,, such prayer should be denied, as she does not come into court with clean hands.
    On bills, &C.

      Mr. John Trier, for the complainant.

      Mr. Howard F. Kirk, for the defendant.
   Churci-i, Y. C.

The facts in this case are as follows: Lillian M. Summers asked that two pieces of property, one on Beach street, purchased in 1919, and one on Lafayette- place, purchased in 1921, be reconveyed to her; the Beach street property having been put in the name of Theodore Morley, and Queenie, his wife, and the Lafayette place property having been put in the name of Theodore Morley.

Mrs. Summers alleges that an agreement was made between her and Mr. Morley in which he was to take title as an intermediary and turn back the title to her upon the payment of $5 in each case.

Mr. Morley denies this and alleges that about the year 1916, shortly after his marriage with Queenie, that Mrs. Summers offered to put a house on Argyle place in his name as a wedding present, if he would give her the sum of $500 towards it, and this house was later sold with the understanding that the money derived from the sale of this house should be put in his name or in his and his wife’s name.

The first question that arises is whether the complainant can establish an express trust in these premises? The deeds were given to Morley for a money consideration and the habendum is to his use. Under the cases, therefore, the land is the absolute property of the defendant. Brown v. Murray, 94 N. J. Eq. 125.

This, it seems to me, is dispositive of the case.

Another question has been raised by counsel, and that is that Mrs. Summers does not come into this court with clean hands, it appearing by the testimony at the hearing that she made ihe convej'ances because there were judgments outstanding against her and she did not dare take it in her own name.

I think this also is a reason for declining to grant the relief prayed for. The law in this matter is so well settled that I will only cite the case of Semenowich v. Melnyk, 93 N. J. Eq. 615.

I will therefore advise a decree dismissing- the bill.


text:
    William F. Linnemann and Anna A. Linnemann, complainants, v. Lillian M. Summers, defendant. Bertha Stafford, complainant, v. William F. Linnemann, Anna A. Linnemann, his wife, and Lillian Summers, defendants.
    [Decided February 8th, 1924.]
    An agent cannot make any secret profit at the expense of his principal, and must repay to his principal such secret profit and also commissions received- on the transaction.
    On Bill, &c.

      Mr. William, P. Murphy, for the complainant.

      Messrs. Osborne, Cornish c& Schech, for William E. Linnemann and Anna A. Linnemann.

      Messrs. Warren, Britt & Blanton and Mr. John Trier, for Mrs. Lillian M. Summers.
   Church, V. C.

The facts in this case are as follows: “On or about October 1st, 1922, William F. Linnemann and Anna A. Linnemann, his wife, owners at that time of property at 45-47 Rutherford Place, North Arlington, Bergen county, N. J., authorized the defendant Lillian M. Summers, a real estate agent of Arlington, N. J., to sell that property for them. Mrs. Summers had represented to the complainants Mr. and Mrs. Linnemann, that she had a purchaser who was willing to pay $7,500, and they authorized her to sell at that price. Several days later Mrs. Summers went to the Linnemann’s house and took with her an agreement of sale already prepared in which the purchase price was stated as $7,500, and the purchaser was 'stated to be Queenie Morley. Queenie Morlejr is the daughter of the defendant, but that fact was not revealed to the Linnemanns. Mrs. Summers told them that $7,500 was a good price, particularly in view of the fact that Queenie Morley had agreed to pay the entire purchase price in cash.

“The Linnemanns, relying upon the representations made by the defendant, executed the agreement of sale.

“At the time that the defendant made these representations to the Linnemanns she was negotiating with one Bertha Stafford for the sale of the same property for $9,500. She had told Bertha Stafford that the complainants wanted $9,500, but that she would try to get it reduced for her to $9,200, and several days after she told that to Mrs. Stafford she returned to Mrs. Stafford and said that she had succeeded in getting the complainants to reduce their purchase price to $9,200. Mrs. Summers then procured an assignment of the agreement of sale from Queenie Morley to herself and oh December 19th, 1922, she effected the two sales, viz., one from' Mr. and Mrs. Linnemann to herself for $7,500 and the other from herself to Bertha Stafford for $9,200. She received from the complainants the sum of $262.50 for commission at the rate of three and one-half per cent, on the selling price of $7,500, and in addition to that sum she pocketed $1,700, difference between the two purchase prices.

“The Linnemanns filed their bill demanding that the defendant return’to them the $262.50 and also the $1,700, making a total of $1,962.50, on the ground that she had fraudulently and secretly made a profit out of the deal while pretending to act as their agent. An answer was filed and the case came on for hearing on pleadings and proof.”

Subsequently, Mrs. Bertha Stafford filed a bill against Mr. and Mrs. Linnemann and Mrs. Summers, setting up the sale of the property and demanding that the $1,700 in question, together with cost of putting the premises in repair, should be paid to her. This case was consolidated with that of Linnemann against Summers.

The principal of law that an agent cannot make any secret profit at the expense of his principal is too well known to necessitate the citation of numerous cases or any elaborate discussion. There is no- question, whatever, that Mrs. Summers acted in a highly unlawful and unethical manner as a duly licensed real estate agent in attempting to make a profit from a sale of property which had been placed in her hands by one of her clients for sale. 9 Corp. Jur. 539; Nagle v. McCoy, 94 N. J. Eq. 790.

Mrs. Stafford’s contention that she should be given the $1,700, plus the cost of putting the premises in repair, seems to me to be without any merit whatever. Mrs. Stafford voluntarily agreed to pay $9,200 for the property and there was no fraud. She moved into the premises before she took title to it. Thereafter she paid the balance of the purchase price and executed mortgages covering the same. She knew what she was doing and the doctrine of caveat emptor certainly applied. Moreover, if she has any action at all, it seems to me it is at law for damages on account of the alleged unsanitary and dilapidated condition of the premises. 1

It is unnecessary to discuss the question raised in the brief of Mrs. Stafford's solicitor as to independent advice, except to say that cases on this subject only refer to persons who from extreme age or mental incapacity are not thoroughly competent to manage their own affairs without independent advice.

I will therefore dismiss the bill of Mrs. Stafford and direct that the sum of $1,700 be repaid by Mrs. Summers to Mr. and Mrs. Linnemann, together with the commission of $262.50 with proper interest and costs.


text:
    Herman Bodner, complainant, v. Michael Rotman and Annie Rotman, his wife, defendants.
    [Decided February 25th, 1924.]
    1. Where a bond and mortgage contained an agreement that if any installment of interest should remain unpaid) for sixty days after the same fell due the whole principal sum and all unpaid interest should, at the option of the mortgagee, his heirs and assigns, become immediately due, and a check for the interest was delivered to the mortgagee who held the same for twenty days, and when deposited it was returned by the bank for lack of funds to meet it, such delay in depositing the check would -have worked no injury to' the defendant had he allowed funds to remain in bank until its presentation.
    2. Where the. holder of a mortgage accepted a payment on the principal, being unaware that a check given him for interest was not good, such acceptance does not bar him from foreclosing the mortgage for non-payment of interest, and is not a waiver of any rights he may have on account of the returned protested check.

      Mr. Herman Waldmian, for the complainant.
    Mr. T. Raymond Bazley, for the defendants.
   Church, Y. C.

This is a mJOtion to strike out the answer filed by the defendants in the above-entitled cause. The facts are as follows:

On January 22d, 1923, Michael Rotman executed a bond and mortgage to David Hollandei, in the sum of $8,000, payable $2,000 on September 1st, 1923; $3,000 on September 1st, 1924, and $3,000 on September 1st, 1925, with interest at six per cent., payable semi-annually.

Both bond and mortgage contained-an agreement that if any installment of interest should remain unpaid for sixty clays after the same fell due, that the whole principal sum, with all unpaid interest, should, at the option of the mortgagee, his heirs and assigns, become immediately due.

On March 2d, 1923, this mortgage was assigned to the complainant.

On July 22d, 1923, six months’ interest fell due on said bond and mortgage.

On September 8th, 1923, a check was forwarded to the complainant for $240 in payment of said interest, which the complainant kept until September 28th, 1923. Said check for interest was deposited on September 28th, 1923, and was returned by the bank for want of funds.

On September 28th, 1923, the $2,000 installment of principal was paid to the complainant before the check for the payment of the interest was protested, and before the complainant had any notice that the check in payment of the interest would not be paid by the bank upon which it was drawn.

The first point is whether the delay of complainant in presenting the check for payment worked such an injury to the defendants that complainant should not be allowed to proceed with the foreclosure until the matter has been heard on final hearing. Section 186 of the Negotiable Instrument act provides that a check must be presented for payment within a reasonable time after its issue or drawer will be discharged from liability thereon to the extent of the loss caused by the delay. It is true that neglect to present a check for twenty days after its receipt would probably be called an unreasonable delay, but in this instance, when the check was presented, it was returned for lack of funds, and the delay in presenting the check would have worked no injury to the defendant had he allowed funds to meet it remain in the bank until its presentment. First National Bank of Portland v. Linn County National Bank, 47 Pac. Rep. 614.

Supreme court of Oregon said:

“The holder's laches in presenting a check for payment constitutes no defense in an action against the drawer unless he is damaged by the delay, and then only to the extent of his loss. A check purports to be made upon a deposit to meet it, and presupposes funds of the drawer in the hands of the drawee. But, if the drawer has no such'funds at the time of drawing his check, or subsequently withdraws them, he com-mils a fraud upon the payee, and can suffer no loss or damage from the holder’s delay in respect to presentment or notice. In such case he is liable and cannot insist upon a formal demand or notice of non-payment.”

The other point raised is that the complainant accepted on September 28th, $2,000 as an installment on the principal, and that the defendant contends' is sufficient to waive any rights the complainant might have on account of the returned protested check. In the first place, the letter enclosing the check specifically says that the enclosed check is a payment due on the mortgage, and that under the circumstances the complainant had no option except to apply it on the principal. There is another doctrine also involved in this case, and that is that the creditor may apply the payment in whatever way he pleases, but in this case at bar he could not apply it to anything but the principal, because the debtor instructed him to pay' it on account of principal. Moreover, the complainant was unaware that the check for interest was bad when he accepted the $2,000.

Under these circumstances, it seems to me that the case comes within the doctrine laid down by Newark Trunk Co. v. Clark, 94 N. J. Eq. 79, and I will grant the motion to strike out the answer.


text:
    Isaac Coltinuk and Rachel Coltinuk, his wife, complainants, v. Lena Hockstein and Joseph Hockstein, her husband, defendants.
    [Decided February 28th, 1924.]
    1. A contract for the sale of lands is not ir. the alternative where it provides that the vendor shall have a yea'r to pay certain encumbrances, the vendee meanwhile occupying the premises under a lease.
    2. Where the performance of a contract for sale of lands was extended for one year to enable the vendor to pay off certain encumbrances, which he did not entirely succeed in doing, and the vendee informs the vendor that he will take the property subject to the encumbrances existing at the end of the time to which the performance of the agreement was extended, he is entitled to a decree for specific performance of the contract as extended.
    On bill, &C.

      Mr. Carl Olsan (Mr. Merritt Lane, of counsel), for the complainants.

      Messrs. Derribe & Derribe (Mr. Maximilian T. Rosenberg, of: counsel), for the defendants.
   Church, Y. C.

This is a case for specific performance of a contract for the sale of land. This contract was dated May 21st, 1918. On that clay the title did not pass because there were certain encumbrances on the property which aggregated more than the price to be paid. Therefore, the parties entered into a supplemental agreement which reads as follows:

“That the said Hoekstein [the defendant] shall have an additional year in which to perfect his title, and should the said Hock-stein at any time within a year from the 1st day of August, 1918, discharge the various encumbrances existing- against the same so that he -can convey the premises in accordance with the contract, then and in that event Isaac Coltinuk [the complainant] agrees to accept the said premises as provided for in said agreement at any time within the year following the 1st clay of August, 191S, upon receiving four weeks’ notice of the fact that the premises are ready to be conveyed by the said Hoekstein.”

The contract provided also that the complainant Rachel Coltinuk should enter upon the premises as a tenant, and provided further:

“The said tenancy shall commence on the 15th day of September, 191S, and continue until such time as the said Hoekstein will he in a position to carry out the agreement of Slay 21st, 1918, heretofore mentioned upon the terms therein stated, and upon the day set for the passing of title under the said agreement as herein stated the tenancy shall immediately come to an end.”

The agreement further provides that if title did not pass as of August 1st, 1919, because of the inability of the defendants to make title, Rachel Coltinuk should continue in possession for an additional period of four years at a certain stipulated monthly rental. The agreement provided also that its provisions should constitute all terms of settlement, and that if the defendant was unable tc, convey the premises on the 1st of August, 1919, the- complainant should have no claim against them other than for the lease.

On the 1st of August, 1919, certain encumbrances were satisfied; others were not. The defendant Hoekstein wrote a letter saying he w'ould not be able to close the title on account of the encumbrances, which be alleged he was still unable to clear off. Complainants replied that they would insist upon a conveyance.

The defendants’ first point is that the contract is alternative, and therefore, because of defendants’ inability to perfect title by discharging encumbrances, the complainants should have no claim other than that which arises from the lease. I do not think that the contract was in the alternative. Counsel has cited the case of O’Conner v. Tyrell, 53 N. J. Eq. 15, in which the contract under discussion contained a provision that, in the event of the failure of the vendors to deliver the deed, the vendors would pay back the consideration money, and in addition a sum not exceeding $1,250, such payment to be accepted by the party of the second part as liquidated damages. The vice-chancellor held, in effect, that this was not a contract in the alternative. In Crane v. Peer, 43 N. J. Eq. 553, the advisory master says: "Alternative contracts are such as by their terms may be performed by doing either of several acts at the election of the party from whom performance is due. Performance in one of the modes is a performance of the entire contract, and no question of damages arises. Stipulating the damages and promising to pay them in case of default in the performance of an otherwise absolute undertaking does not constitute an alternative contract.” When we consider the facts in the ease at bar, it appears that in 1918 the defendants were unable to carry out the contract, and the additional agreement was made to hold Hockstein in his endeavors to so perfect his title that, on August 1st, 1919, he could convey it.

I therefore find as to the first contention of the defendants that the contract was not in the alternative-

It appears also that on August 1st, 1919, the complainant demanded a conveyance of the property. There were at that time some liens still unsatisfied, but complainants informed defendants that they would be willing to take the property subject to whatever liens might appear of record; and it further appears that the amount of these liens was easily ascertainable. The question involved here seems to be as to what is the meaning of the defendants’ inability to convey. I cannot see how this defendant can plead inability. when complainants are willing to take title subject to encumbrances, the amount of which can be easily ascertained and deducted from the agreed upon purchase price.

Considering the testimony in the case, I am, inclined to think that the inability of the defendant arises largely from the fact that the property in the meantime has risen in value and that he does not wish to convey, because if this action for specific performance be dismissed, he can sell to someone else at a higher value. It would, in my opinion, be inequitable to permit defendant to take adantage of legal technicalities for his own aggrandizement.

I think the other points raised by the learned counsel for the defendants are immaterial to the issue, in .view of the reasons stated above.

I shall therefore advise a decree for specific performance.


text:
    Anna Geller, executrix of the estate of Barnett Geller, deceased, and Mark Epman, surviving partner of the firm formerly known as the Ellmar Company, a co-partnership consisting of Barnett Geller and Mark Epman, complainants, v. William K. Johnsen and Martha V. Johnsen, his wife, et al., defendants.
    [Decided March 6th, 1924.]
    Where a man and his wife were tenants by the entirety to land, and conveyed the lands to one who advanced the husband money, and w'ho afterwards conveyed the lands to the wife, the conveyance on the part of the husband, even if he was or was about to be insolvent, is at most a preference of one of his creditors, and in the absence of fraud participated in by the grantee of the deed, is good.
    On bill, &e.

      Mr. William Harris, for the complainants.

      Mr. George W. C. McCarter, for the defendants.
   Church, Y. C.

The complainants in this case are judgment creditors of the defendant William K. Johnsen. Their prayer is to set aside as fraudulent conveyances made in 1922 of certain premises in the city of Newark. The premises were conveyed on January 7th, 1920, to William Johnsen and Martha Johnson, his wife. They, therefore, were tenants by the entirety. On February 17th, 1920, the Johnsens conveyed, the premises to Ludwig Urban, and by another conveyance Ludwig Urban, and his wife conveyed back an undivided one-half to Martha Johnsen. This places the complete title in Martha Johnsen, and the oply question is as to whether the complainants should have the deed set aside in so far as it affects the interest of William Johnsen.

It appears by the testimony that some time in 1921 William Johnsen needed money, and his father-in-law agreed to let him have some money in exchange for Johnsen’s interest in these premises. On that day a thousand dollars was advanced. On February- 6th, 1922, an additional one thousand dollars was advanced. This statement is abundantly corroborated in the testimony and is uncontradicted.

. I am not impressed with the fact that the consideration in the deed is one dollar and other good and valuable considerations, and that there was no revenue stamps. The deeds are in regular form and, unless the contrary is shown, consideration is presumed. Brown v. Murray, 94 N. J. Eq. 125.

The bill charges that all of the defendants conspired to defraud the complainants who were William Johnsen’s creditors, and alleges that Martha Johnsen knew of a recorded judgment in New York. This is denied in the answers, and there is no evidence in support of these allegations. It may be said that these conveyances were made pending an action in New Jersey and before judgment, but it also appears that Johnsen filed an answer to the complaint in the Essex county circuit court, setting up a counter-claim, which the court refused to strike out, but owing to the death of a material witness the counter-claim could not be proved.

The question therefore is whether, assuming that William Johnsen felt that he was or was about io be insolvent, could he prefer one of his creditors? It is sufficient to cite the case of Atlantic Refining Co. v. Stokes, 77 N. J. Eq. 119, which holds in effect .that an individual who is in failing circumstances can prefer one of his creditors. The limitation of this right is that it must be shown that the grantee participated in the fraud of the grantor.. There is nothing in the case to show that Urban had any knowledge of the failing .circumstances of his son-in-law and, therefore, I do not see how these conveyances can be set aside.

I shall therefore advise a decree in favor of the defendants.


text:
    Michael G. Alenick, complainant, v. Clara Sorenson and Soren Sorenson, defendants.
    [Decided March 17th, 1924.]
    Where a man deposited money produced by sale of Ms wife’s real estate in his own bank account, and afterwards, on her protest, paid her in cash about the same amount of money as was produced by the sale of the real estate, such money could not be taken by the creditors of the husband on judgments obtained after the money was repaid to the wife, as at most it could only be considered as a preference of a creditor.
    On bill, &C.

      Mr. Milton M. Unger, for the complainant.

      Mr. James P. Mylod, for the defendants.
   Church, V. C.

This is a bill filed by the trustee in bankruptcy of one Boren Sorenson to have it decreed that the defendant Clara Sorenson, his wife, holds certain lands situated in Caldwell, .New Jersey, in trust for Soren Sorenson, and through him for the trustee in bankruptcy. The.facts are that Sorenson purchased a lot in Montclair in March, 1912, upon which he erected a house with his own funds. The title to the lot was taken in the name of his wife. The property was exchanged for another, which property was lost under foreclosure proceedings. In January, 1921, another property was purchased in Montclair, the title to which was taken in his wife’s name. This property continued in the name of his wife until May, 19,23, when it was sold, and the proceeds, which amounted to $2,391.65, were deposited in the name of the husband in the Essex National Bank of Montclair.

From this account the husband drew out moneys to pay creditors of his business until a balance of only $6.32 remained. On September 21st, 1923, the property in question was acquired, the title being taken in the name of the wife. On June 23d, 1923, two judgments against Sorenson were recovered as a result of an automobile accident.

The allegation of the complainant is that this property was actually paid for with money belonging to Soren Sorenson, and that title was taken in his wife name to defraud the creditors' who has secured the judgments above mentioned. Her story Is that when the second piece of property in Montclair, known as the Willow street property, was sold, the check for the net proceeds of the sale was made out to the order of Clara Sorenson, amounting to $2,391. It was delivered to her and she endorsed it and deposited the check in her husband’s bank account, she having no account of her own; that when she found he was paying this out in his own business she protested, as did their daughter, and demanded that he repay her this amount. On July 11th, 1923, the husband paid the wife $500 which he had received from the proceeds of his business, and on June 20th he paid her the further sum of $1,200, and, subsequently, $350. These payments, with the possible exception of the $350, were all paid the wife before June 26th, when the judgments were recovered.

The question then arises as to whether this property was actually paid for with money belonging to- the husband or with money belonging to the wife. In June, 1921, when Sorenson bought the Willow street house, there was no question as to his solvency, and the title was taken in his wife’s name, and even though he did pay for it from his own funds, it seems to me, that that made it hers absolutely. When it was sold and the proceeds amounting to $2,391 were deposited in the name of the husband, the question arises as a matter of fact whether this was a gift from the wife to the husband or whether her story is true, that it was deposited in her husband’s account merely for the sake of convenience. I believe that this latter situation is true, and it is confirmed in my opinion by the fact that in June, 1923, before the judgments were recovered against him, he turned over to his wife practically the same amount of money which she claimed as hers. Moreover, the eases, as I understand them, hold that a person in failing circumstances may prefer a creditor unless the creditor unites with the one making the conveyance to defraud. Reed v. Tilton, 90 N. J. Eq. 42, 43.

I. was impressed by the straightforward stories told by the husband, the wife and the daughter on the witness-stand. The wife for over fourteen years has been a working woman, and has also conducted, with the assistance of her daughter, a boarding-house, and receives some revenue from that, so there is nothing improbable in her story that this money actually represented her earnings. Her husband seems to have acquiesced in this theory, and voluntarily returned the money to her before the judgments against him were obtained. I do not think he made these payments in order to defraud his creditors, and it should be borne in mind that before the cases were tried it was impossible to know whether or not there would be any creditors.

I shall therefore advise a decree dismissing the bill.


author: Ingersoll, V. C.

text:
    Broadway Trust Company, a corporation, complainant, v. The Borough of Haddonfield, defendant,
    [Decided February 7th, 1924.]
    1. The making and filing of a map with a block on it marked as “Park” followed by conveyances of lots in reference thereto, operates as a dedication.
    2. Evidence examined and held that the land described in the bilí in this cause was not dedicated to use as a park.
    On bill to quiet title. On final hearing.

      Mr. Lewis Biarr, for the complainant.

      Mr. Patrick II. Harding, for the defendant.
   Ingersoll, V. C.

This is a bill to quiet the title of certain property in the borough of Haddonfield, in the county of Camden, being known and designated as lots Nos. 335, 336, 337, 338, 339, 340, 341, 342, 343 and 344 on a map' or plan of the property of the West Haddonfield Land Company, duly filed in the office of the register of deeds of Camden county.

Complainants allege that they are the owners of the said land and are in peaceable possession thereof, and that their title is disputed by the defendants. The defendant’s claim is that said lands were, together with other lands, “set off and dedicated to the public as a park by proper words, symbols, marks and designations, on the map or plan above referred to.” That said West Haddonfield Land Company made and effected sales of other and adjoining lands to said alleged park area on the representation that said park was in truth and good faith what said land company intended said dedication to be. That the dedication was accepted by the borough of Haddonfield by resolution on or about January 25th, 1922. And, further, that the complainant is in laches by reason of its delay in filing its bill.

In 1893 the Haddonfield Land Company was the owner in fee of the lands and premises delineated on the map above referred to, which map was marked “Plan of the property of the West Haddonfield Land Company, filed August 18th, 1893, by Jacob Sickler, Register,” with a memorandum thereon “removed from bottom slide 43.” This map was admitted by counsel as having “come from the files of the register of deeds, and that it had been filed as of the date thereon,” and was admitted in evidence.

A copy of so much of that map as is pertinent to the issue in this case and of the case of Blank v. Borough of Haddonfield, heard by consent at the same time is annexed hereto.

In 1893 the Haddonfield Land Company, the defendant, was the owner in fee of the land and premises delineated on the map. The complainant is the owner of the lots mentioned in the bill of complaint, by virtue of a deed from Cooper B. Hatch, sheriff of the county of Camden, to the Broadway Trust Company, for these lots, recorded July 7th, 1911, in book 358 of deeds, page 332.

The West Haddonfield Land Company made about fifty-six conveyances between the date of the filing of the map and January 1st, 1898, the recital in each of which is “that the land company has caused the land to be laid out into building lots and avenues, and a map thereof to be made called ‘Plan of property of W. H. L. Company/ and filed in the office aforesaid.” No lots were sold during that period in the part that is marked “Park” and showing the area delineated by the trees and evidenced by the lines that bound the trees, nor upon the rectangular tract upon which Lake Haddon is situate.

Another map was offered in evidence, marked D-S, delineating the same land, but with the rectangular portion enclosing “Lake Haddon” and the trees about same designated in green color, and the lots bounded by West End and Woodland avenues, and the boundary lines of the tract together with lots Nos. 342, 343, 344, 345, 355, 354, 353, 403, 405, 406, 407, 408, 409, 410, 411, 412, 413, also designated in green. .This map was not filed and there is no testimony that any sales were made with reference to it, and its only connection with the company is the statement of Mr. Dobbs, who said it was issued by the land company, but who on cross-examination said, “Well, I do not know who else would prepare maps of that tract but the company. I don’t recollect when it was issued or who issued it, but I take it for granted nobody else would do it.”

It was testified that the map originally filed, was filed on August 18th, 1893, without authority by the surveyor who prepared it, and that on February 1st, 1894, a resolution was passed by the directors of the company as follows: “On motion it was ordered that the secretary endeavor to obtain authority from all lot purchasers to eliminate the words “park” and “lake” from the map, also obtain consent to a change in the course of Redman avenue—if successful in obtaining the necessary consents the secretary be authorized to destroy all old maps and obtain new ones.”

That quit-claim “deeds” or waivers were obtained from all excepting two of those who had purchased land, and that a new map was filed on December 20th, 1897. This map was offered in evidence and marked 0-5.

This new map was very similar to the old, excepting no “lake” or “park” is shown, and no delineation of trees in any part. The part marked lake on the old map was divided into lots, as was Estaugh avenue, and the extension of same was, although divided into lots and numbered, marked “Camden Horse R. R. Co. Proposed Trolley.”

It was admitted as a fact in the case that until 1922 all of the land in the area which is claimed to be marked “Park,” and in the “Lake,” was assessed by the municipality and the taxes were paid until that year, and that neither the borough of Haddonfield nor Haddon township, in which the land was located when the map was put on record, have made any use of the area marked “Park” until after the ordinance was adopted.

That the borough owns and acquired from the West Haddonfield Land Company, lots 303 and 304 on the map, and that a pumping station in connection with the sewer plant of the borough was located on these two lots, and that the borough laid sewer pipe to connect with the pumping station on those two lots in a tract of land, which would be an extension of Estaugh avenue, through the part that is marked “Lake Haddon.”

That the borough or the municipal authorities have never taken possession or exercised any rights of ownership or possession over the area marked “Lake,” except the construction of the sewer pipe in and along what would be the extension of Estaugh avenue.

The entire tract was known as the Eedmond farm, and had been cultivated, except that portion upon which there was a grove of trees known as Eedmond woods, located about as indicated by the trees on the westerly side of the tract. Through the farm about the location marked “Lake” was a natural drainage ditch, which drained the land evidently into a branch of Newton creek. Where the “Lake” is indicated was a low place, in dry weather without any water and in wet weather, with water covering considerable area but of very few inches depth, which also was not cultivated.

About the time of the filing of the map, the trees along the avenues were cut down, the stumps removed, but the streets were not graded. The remainder of the trees in the area marked “Park” were cut down and sold by the land company. This was .a considerable growth of “big trees and they were sold for telegraph poles.”

The borough filled in the land designated as “Lake” and graded and graveled Estaugh street through the “Lake” and as before stated, placed a line of sewerage pipes in said street.

The question for determination is, Was the land accepted by the borough as a “park,” dedicated as such by the company? It will be noticed that on the original map filed the entire land marked “Park” is plotted into building lots of the same size and character as in other parts of the tract. That the word “Park” is placed thereon as follows: The letter “P” is almost entirely on lot 425, upon which no tree is delineated; the letter “A” is at the intersection of Woodland and Peyton avenues; the letter “R” on lots 346 and 347, and the letter “K” on lots 261 and 260. “P” and “A” are within the limits of the green shaded tract on map marked Exhibit E-8, and within the territory included in the resolution of acceptance of the borough. The letters “R” and “K” are without these limits, and the latter approximately by examination and measurement by scale, of the map in evidence, three hundred and fifty feet or more from the nearest point of the claimed dedication.

It is manifest that it has never been considered or understood in this case that the dedication, if any, was to cover all the land upon which appeared the letters composing the word “Park.”

The contention is that the ground delineated in green on Exhibit E-8, and described in the borough resolution, is all that may be included in the dedication.

In so far as the original map is concerned therefore—do the markings representing trees on a map with the word “Park,” partly within and partly without the area alleged to be, dedicated—all the tract being divided into streets and lots duly numbered, dedicate the lots within the general boundaries of lots upon which trees are located.

The easterty boundary arbitrarily included lot No. 403, upon which no tree is delineated and which, as included, makes an irregular boundary line in that block.

If this map is correct, nature has evidenced a remarkable regularity in that every tree is situated upon the end of a lot and with more remarkable symmetry, alternating from the front to the rear of the lots. It will also be noted that the fact that a tree is delineated on lot 309 is not considered sufficient to include it within the dedication.

It is well settled that the making and filing of a map, with a block upon it marked as “Park,” followed by conveyances of lots in reference thereto operates as a dedication. Price v. Inhabitants of Plainfield, 10 N. J. Law 608.

In Weger v. Delran, 61 N. J. Law 221 (on ¶. 226), the facts stated were: “That about 1853 Bechtold had purchased a tract of land which included the locus in quo; that he had made a map of it, laying it off by streets and lots * * ' *; that all the blocks except the locus in quo were divided into numbered lots; that it was distinguished from the other blocks by a different coloring, by the delineation of trees and of paths, and by a rough representation of a fountain in the centre; that a copy of the map had been attached by wafers to a deed book in the county clerk’s office, and that he had declared to many persons his intent to dedicate the locus in quo as a place for recreation and pleasure to the public.” Held, there was evidence before the trial judge in a trial without a jury», in respect to dedication.

In Trustees of M. E. Church v. Hoboken, 33 N. J. Law 1, on the map the lands were all laid out in streets and lots twenty-five feet frontage, except the four squares, which were colored green, and the plot of ground in question was marked on the map “Square.”

The court said: “The question of dedication, being a question of intention, is to a great extent a question of fact for the jury. The case was fairly presented to the jury, and I see no reason for disturbing their verdict.”

In Bayonne v. Ford, 43 N. J. Law 292, “Roswell Graves was the owner of a tract of land containing about two hundred acres * * * and- which parcel included the premises then in question. He had this whole tract marked out on a map into lots and plots, streets and avenues, and the premises in dispute were indicated on this map thus: ‘Annette Park, now belonging to R. Graves.’ This park stood by itself, being separated on all sides from the building lots by laid out" streets. Graves had also repeatedly» declared that he had dedicated the park to the public. A direction to find a verdict for the plaintiff was sustained.”

In Bozarth v. Egg Harbor City, 89 N. J. Eq. 26, in determining the question of dedication the court said: “All blocks on that map, except these three blocks and the two parks already referred to [the land in question], are subdivided into lots.”

As to the land in controversy in the bill of the Broadway Trust Company, complainant, I am convinced that the land company did not dedicate the lands of the complainant or the other land called the “Park” by the filing of the map of 1893 or otherwise.

Had, on this map, the land in controversy not have been divided into lots, it might perhaps have been held that the part not divided into lots and having trees delineated thereon, to have been dedicated even if the word “Park” extended beyond such boundaries, and likewise, if on this map, the land in question had been colored differently from the remainder of the map (as it was on the unfiled map), even if the word “Park” extended beyond the boundaries.

For the purpose of analysis, let us take up the different points upon which dedication has been declared:

First—There is no specific lot or tracts of land delineated as “Park,” or by any other apt word, as in Price v. Inhabitants of Plainfield, supra.

Second—There is no specific lot or tract not divided into lots, as in Weger v. Delran, supra; or Bozarth v. Egg Harbor City, supra.

Third—There is no specific boundaries of the land upon which trees are delineated, as in Weger v. Delran, supra.

Fourth—There is no specific tract differing in color from the remainder of the map, as in M. E. Church v. Hoboken, supra.

Fifth—There was no declaration of dedication, as in Weger v. Delran, supra.

I find, therefore, that there was no dedication of the land in qirestion, and the complainant is entitled to a decree.


text:
    Theodore Blank and Emma Blank, his wife, complainants, v. Borough of Haddonfield, defendant.
    [Decided February 7th, 1924.]
    1. The filing in the office of the register of deeds and mortgages of a map, plotted into streets and lots, showing an open space in the centre of which a lake or pond was marked “Lake Haddon,” trees being designated around, the edges, and the selling of lots by reference to the map, constituted a dedication to the public as an open pleasure ground.
    2. Evidence examined and held that the land described in the bill in this cause was so dedicated.
    On bill to quiet title. On .final hearing.

      Mr. Lewis Starr, for the complainants.

      Mr. Patrick II. Harding, for the defendant.
   Ingersoll, V. C.

This case was heard by consent with the case of Broadway Trust Company v. Borough of Haddonfield, and the memorandum filed in that case states the general facts in this case.

The complainants are the owners of “all that lot or tract of land situate in the borough of Haddonfield, county of Camden, and State of New Jersey, bounded and described as follows:

Beginning at a point in the northwesterly side of -Mt. Vernon avenue, at the distance of three hundred feet southwesterly from the intersection of the northwesterly side of Mt. Vernon avenue with the southwesterly side of Linden avenue, said point being a corner to lot No. 212, as shown on plan of property of the West Iiaddonfield Land Company, and extending thence sonthwestwardly along the northwesterly line of Mt. Yernon avenue, the distance of fifty feet to a point in the northeasterly line of lot No. 214 on aforesaid plan, and extending thence northwestwardly and at right angles to Linden avenue, and along the northeasterly line of lot No. 214 on aforesaid plan, the distance of one hundred and seventy-five feet to a point common to lots Nos. 199, 200, 213 and 214 on the aforesaid plan, thence northeastwardly and along the rear line of lot No. 200 on aforesaid plan, the distance of fifty feet to a point common to lots Nos. 200, 212 and 213 on aforesaid plan; thence soutlreastwardly along the southwesterly line of lot No. 212 on aforesaid plan, the distance of one hundred and seventy-five feet to the northwesterly side of Mt. Yernon avenue and the place of beginning.

This tract is within the boundaries of “Lake Haddon” and the land upon which trees are delineated, between Lake Haddon and lots 201-212, as appears on the sketch hereto annexed.

The only question is. Was the land within these boundaries dedicated by the filing of the map described in the memorandum in Broadway Trust Company v. Borough of Haddonfield?

While I was constrained to find there was not a dedication in Broadway Trust Company v. Borough of Haddonfield, there is a most remarkable similarity between the present case and Fessler v. Town of Union, 67 N. J. Eq. 14; affirmed in 68 N. J. Eq. 657.

Following the reasoning and conclusions in that case, a decree will be advised dismissing the bill.

Copy of map annexed omitted.


author: Ingersoll, Y. C.

text:
    South Jersey Furniture Corporation et al., complainants, v. William T. Dorsey et al., defendants.
    [Decided January 22d, 1924.]
    1. A bill for specific performance .may be maintained by the assignee of the vendee in a contract for sale of land.
    2. Where the vendor’s wife did not execute a contract of sale, but by her acts consented thereto, a decree of specific performance may provide for allowance in the purchase price of the value of her inchoate dower.
    3. A. contract for sale of land signed by one of the parties ceases to be unilateral when the other party files a bill for specific performance thereof.
    4. Where a mortgage was made, executed and recorded before visible possession of the lands was taken by the vendee, who took possession under the agreement to purchase, such mortgage is - a lien upon the premises: but where other liens were attempted to be imposed thereon after such visible possession was taken, and as such are not without notice of the vendee’s claim of right, they are not prior liens.
    On bill for specific performance On final hearing.

      Mr. William Elmer Brown, Jr., and Messrs. Cole & Cole, for the complainants.

      Mr. Joseph B. PersJde, for the defendants William T. Dorsey and wife.

      Messrs. Endicoil £ Endicoil, for the defendant National Security Bank, of Philadelphia.

      Messrs. Moore £ Butter, for the defendant Equitable Trust Company.

      Mr. Patrick H. Harding, for the defendant James Carney.
   Ingersoll, Y. C.

This is on bill for specific performance with a prayer “that complainants be permitted and allowed, to pay into this court such moneys as may be found and determined to be due under the terms of said agreement, so that said moneys may be paid and distributed to and among said defendants having liens as aforesaid under the direction and order of this court.”

On the 16th day of January, 1922, William T. Doxse3r, the owner of a lot of land in Ocean City, entered into an agreement. purporting to be with William Thompson, wherein he agreed to sell the said lot of land to the party of the second part for the sum of $12,000, payable “$500 this day on account, receipt of which is hereby acknowledged; the party of the second part to place a first mortgage of $5,000 or more if possible, $1,500 cash at the time of settlement; the difference between the total of cash invested [$2,000] and the first mortgage to he a second installment mortgage for five years. One-fifth of same to be paid on said mortgage each year commencing from the date of the mortgage.” * * * “Possession to be given party of the second part at any time after the signing of the agreement; * * * settlement to be made on or before the. 16th clay of March, 1922, or as soon thereafter as satisfactory title policy could be secured from the Ocean CitAr Title and Trust Company.”

The agreement was signed by William T. Dorse3^ and by Ralph L. Chester as attorney for William Thompson.

In the agreement Blanche L. Dorsey, the wife of William T. Dorsey, was named as one of the parties of the first part, but it was not executed by her.

William Thompson was what is usually known as a straw man. He had no knowledge of this transaction at the time, nor did he gain knowledge thereof for a long time thereafter. He made no formal assignments o£ his rights thereunder until the day of the hearing. Chester had been representing Thompson, and had been on occasions using his name for purchases and sales, and had had a power of attorney from Thompson for some time prior thereto.

The purchase was actually made by Ralph L. Chester, Edward M. Sutton and Donald M. Patterson, partners, who were then, or intended soon thereafter to be, trading as South Jersey Furniture Corporation. Later they organized a corporation of the same name, to which all the right, title and interest of Chester, Sutton and Patterson in the business was transferred.

Possession was taken almost immediately after the signing of the agreement. The title company was apparently not prepared on March 16th, 1922, to issue its policy, and on or about May 27th, 1922, the parties met at the title company’s office for settlement.

It then developed that on January 28th, 1922, Dorsey and his wife had executed a mortgage upon the lands and premises in question to the Equitable Trust Company, of Atlantic City, to secure the payment of the sum of $1,500 at the expiration of three months from the date thereof, with interest thereon at the rate of six per cent, per annum, payable semiannually. Said mortgage had oa the 2d day of February, 1922, been recorded in the clerk’s office of Cape May county, in book No. 183, page 48.

That on March 7th, 1922, Dorsey and his wife had executed a mortgage on the premises to one James Carney, to secure the payment of the sum of $5,000 within two years from the date thereof, with interest. Said mortgage had been recorded in the clerk’s office aforesaid on March 11th. 1922, in Mortgage Book No. 181, page 358. Carney was present at the title company and stated that there was due on the principal of said mortgage only the sum of $2,000.

That on March 23d, 1922, Dorsey and his wife had executed a mortgage on the premises to the National Security Bank of Philadelphia, to secure the payment of the sum of $5,000 within live years from the date thereof, with interest. Said mortgage had been duly recorded in the clerk’s office aforesaid on March 30th, 1922.

It then appeared by the title company’s figures that to make the settlement it would be necessary for Dorsey to advance funds, which he was unprepared to do^ but stated that lie would endeavor to arrange matters and that settlement could be set for a later day. No settlement or conveyance has since been made.

On August 4th, 1922, Dorsey executed an obligation under seal to the said National Security Bank of Philadelphia, conditioned for the payment of the sum of $7,975 on August 5th, 1922. Default was made and judgment entered in the Cape May circuit court. .

Pn June 29th, 1922, George A. Bossier, Charles Colcord and Charles Youngkin, trading as Bossier & Company, filed an attachment against Dorsey for $672.20 in the New Jersey supreme court.

The consideration of the mortgage to the Equitable Trust Company was the sum of $1,500, money loaned and advanced by the company to said Dorsey.

The consideration for the Carney mortgage and for the National Security Bank mortgage was, in each instance, in whole or in part, for past due indebtedness of Dorsey to the mortgagees. The judgment obtained by the National Security Bank included the mortgage debt, which mortgage had not been foreclosed.

The defendant Dorsov insists that by reason of the fact that settlement was not made on the 16th day of March, 1922,' the date mentioned in the agreement, he was compelled to 'execute the mortgages to Carney and the National Security Bank of Philadelphia, in order that certain properties in Pennsylvania could be released from liens upon them, in order that he might make sale thereof.

It will be noted that the mortgage to Carney was executed five days prior to the date fixed-for settlement: the mortgage to the National Security Blank of Philadelphia was executed on March 23d, 1922, one week after said date, and that the contract called for settlement on March 16th, 1922, or as' soon thereafter as policy could be secured from the Ocean City Title Company.

Time was not the essence of this contract, and no unreasonable delay has been shown on the part of the vendee.

The complainant is the assignee of Thompson equitably prior to the day of hearing, and by duly executed assignment delivered at that time. A bill for specific performance may be maintained by the assignee of the vendee in a contract for the sale of land. Bateman v. Riley, 72 N. J. Eq. 316; citing Pom. Spec. Perf. ¶[ 487.

It is insisted that the contract is unenforceable because Mrs. Dorsey did not execute the contract, and now refuses tp execute a deed in conformity with the contract, and that such refusal is because of connivance of the husband.

There is no merit in this contention. At the time of the proposed and attempted settlement at the title company’s office, Dorsey presented a deed executed by himself and his wife to the complainants for the premises in question.

In a 'suit to specifically enforce a contract to convey land, a deed, properly executed and acknowledged by the vendor and his wife, is evidence of her willingness to relinquish her dower. Krah v. Wassmer, 75 N. J. Eq. 109. In this case no decree was made against the wife because she had not been made a party. Hulmes v. Thorpe, 5 N. J. Eq. 415, was cited, where the chancellor said: “It may be that the wife’s acknowledgment of the deed in this case should be considered as equivalent to her express consent to execute it, and that on this ground the court would be justified in making a decree that Thorpe deliver a deed executed by him and his wife. But it would be safer for the court, to decree the delivery of the deed already executed by her, and, perhaps, it would be safer for the complainant.”

Krah v. Wassmer, supra, is followed and cited with approval in Luczac v. Mariove et ux., 92 N. J. Eq. 277, and affirmed by per curiam opinion, 93 N. J. Eq. 501.

Objection is also made to the enforcement of the contract, upon the ground that Chester had no authority from Thompson to execute it, and that it was therefore unilateral and unenforceable.

Tn Krah v. Wassmer, supra, Vice-Chancellor Howell uses the following language- “The defendants claim that the receipt above set out is not a contract, or, at least, if it is a contract, it belongs to that class which is known as unilateral contracts and is not specifically enforceable in equity. The law in relation to contracts of this class has received a great deal of judicial attention in this state. In Cramer v. Mooney, 69 N. J. Eq. 164, it was held that a contract for sale of lands, though signed only by the vendor, would not be held to be unilateral in a case where the vendee had paid nine-tenths of the purchase-money and had tendered the balance thereof and had entered into possession of the lands.” Vice-Chancellor Grey says: “The defendant has not only paid to the vendor complainant the greater part of the purchase-money, but has actually entered into possession of the premises and tendered the balance of the agreed price and demanded a deed and the clearing of the title, and the complainant has accepted him as a purchaser and tendered him a deed, and now files his bill to enforce payment. These acts of part performance are sufficient to> establish a contract between the complainant and defendant which would be enforced in equity even if entirely by parol.” Even if the case stood upon this so-called unilateral contract it ceased to be unilateral the very moment the vendee filed his bill for the specific performance of the contract. Richards v. Green, 23 N. J. Eq. 536. In that ease Chief-Justice Beasley, in the opinion in the court of errors and appeals, says: “But it will be observed that when such contracts come to be enforced in equity they cease to be unilateral, for upon filing the bill the party who was before unbound puts himself under all the obligations of the contract. By his own act he makes the contract mutual and the other party is enabled to enforce it. The consequence is that in every case that I can find where specific performance has been ordered a mutual remedy existed upon it at the time of the rendering of the decree. I must therefore hold that this objection is untenable.”

Objection is also made that no time is fixed for the maturity of the first mortgage. Under such circumstances as here exist, a court of equity will, if necessary, presume it to have been the intention of the parties that the mortgage should be made payable on demand. Green v. Richards, 23 N. J. Eq. 32; Luczac v. Mariove, supra; Patterson v. Loiseaux Lumber Co., 92 N. J. Eq. 569.

The result is that, in so far as Dorsey and his wife are concerned, a decree should be entered directing the husband to deliver to complainants a deed for the premises, subject to the incohate right of dower of the wife, and payment into court of a sufficient amount to indemnify oomplainants against any claim of dower, or complainants may retain out of the purchase price the value of the dower right.

There remains, therefore, the question of the rights of the remaining defendants.

The mortgage of the Equitable Trust Company, dated January 28th, 1922, and recorded in the clerk’s .office of Cape May county, in book No. 183, page 48, was for a valuable consideration and before visible possession was taken by the complainants, and is therefore a lien upon the premises.

The rights of all other defendants accrued after active occupancy of the premises, and as such are not without notice of vendee’s rights or claim of right. Patterson v. Loiseaux Lumber Co., supra.

The rules governing this statement are set out by the court of errors and appeals in Wood v. Price, 79 N. J. Eq. 620:

“4. Possession of real estate which is actual, open and visible occupation, inconsistent with the title of the apparent owner by the record and not equivocal, occasional, or for a temporary or special purpose, is constructive notice to all the world of the rights of the party in possession.

“5. This rule also includes those equities of one who occupies as tenant, that are connected with the tenancy, as well as interest under collateral agreements, as a contract to convey the land, or to renew the lease.

“6. The possession of premises by a tenant is constructive notice, not only of such tenant’s rights and equities, but as well notice of those of the landlord.”

A reference will be made to a master to determine the amount due from complainants to defendant Dorsey, and also to determine the amounts due to the respective defendants.


author: Bexti.ey, Y. C.

text:
    Golden Cruller and Doughnut Company, Incorporated, complainant, v. Solomon Manasher and William Cennon, defendants.
    [Decided December 13th, 1923.]
    1. The disclosure of secrets which have came to one's knowledge during the course of confidential employment will be restrained by injunction.
    2. Where employes of a corporation agree that they will not take any agency for sale of the corporation’s product, and will not sell or turn over any list of the customers of the corporation, it is a violation of this agreement that will be enjoined by this court when such employes, in anticipation of opening up a competing business, go to customers of the corporation and try to prevail upon them to discontinue patronizing the corporation, and to purchase from the employe instead, and also try to entice other employes of the corporation away from its service and into its own.
    Oil b 11, &o.

      i\[r. Daniel D. Loéb (Mr. Harry Lane, of counsel), for the complainant.

      Messrs. Freclman & Fredman, for the defendants.
   Bexti.ey, Y. C.

This is a bill to enjoin a breach of contract filed by an employer against two former employes.

The defendants are, or were, employes of the complainant, one being engaged in selling or delivering its products to its customers, while the other was employed in the plant of the company, whereby each of them learned much of the company’s business, its methods and the names of addresses of its customers. One of the defendants, Manasher, entered into a written engagement upon being employed wherein, among other things, he agreed:

“Not to take the agency for or sell crullers or doughnuts, pastry, bread, etc., that may be furnished me by any other baker, without first obtaining the written consent of the said party of the first part; and that X will do all in my power to build up and extend the deliveries of this route; also
“Not sell or turn over the list of customers on my route to any other party without first obtaining the written consent of said Golden Cruller and Doughnut Company.”

The bill then alleges that, in anticipation of opening up a competing business with that of the complainants, Manasher has taken advantage of his knowledge of the customers that he supplied, gone to the latter and tried to prevail upon them to discontinue patronizing the complainant’s business and to purchase from the defendants instead, while both of the defendants have attempted to entice other employes of the complainant away from its service and into their own.

Upon the filing of the -bill making the foregoing allegations, an order to show cause was made witb ad interim restraint to prevent the defendants from carrying out the acts above outlined. On the return thereof it is argued with regard to the defendant Cennon that he has never been served and knows nothing about this proceeding. If that be so, of course lie cannot be bound by what has not been brought to his attention. But there is sufficient proof before me to make it appear that he has been served, and what I shall say with regard to Manasher applies equally to him.

Counsel representing the defendants argues that there is a distinction between the present case and one where a trade secret is involved, such as a secret formula" of manufacture or secretly designed machinery, or something of that sort. I know of no such distinction, and I think that, clearly, any information obtained by an employe in a confidential manner is equally as sacred as such secrets I have just referred to.

It is said in High Inj. (at pp. 26, 27):

“The disclosure of secrets which have come to one’s knowledge during the course of confidential employment will be restrained by injunction. * * * And in such ease it is unnecessary that there should be an express covenant upon the part of the defendant not to disclose the secrets of plaintiff’s business if such an agreement may
fairly be implied from the circumstances of the case and the relation of the parties.” Stone v. Grasselli Chemical Co., 65 N. J. Eq. 156; Taylor, &c., v. Nichols, 78 N. J. Eq. 684.

It seems to me that this is a typical or a classical instance for the intervention of this court by its right.

Counsel has also directed my attention to the cases of Mandeville v. Harman, 42 N. J. Eq. 185; Sternberg v. O'Brien, 48 N. J. Eq. 370, and Cosmos Dyeing and Printing Works v. Calderini et al., 91 N. J. Eq. 378. These apply to the entirely distinct question of an unreasonable contract in restraint of-trade. They all contemplate contracts where the employe is deprived of the right of making a livelihood under any and all circumstances; whereas, the instant case deals with the effort to prevent an employe not from entering into a competing business, but utilizing in that business the valuable list of customers that the employer by his efforts and the expenditure of his capital has succeeded in getting together.

Were this a court of law, there might be some force to the argument that the allegations of the bill cannot be superimposed upon the conditions of the agreement that the defendant signed. But such an argument is not received in this court with any favor, and is never decisive unless the strict legal rights of the defendant overcome the equity of the complainant’s position.

It would be difficult for the defendants to preserve composure of their respective countenances were they to pretend that their agreement contemplated that while they should not disclose the methods and customs of their employer to any other competitor they might with perfect propriety appropriate to their own use, as competitors, the same information. The 'very statement of the fact carries with it its own answer. For what purpose, as a reasonable man, did the defendant Manasher think he was required to keep secret and employ only for the complainant’s benefit the list of customers that was entrusted to him,?

Nor is there any merit to the argument drawn from the case of the Citizens Coach Company v. Camden Horse Railroad Company, 29 N. J. Eq. 299, and Kearny v. Bay-

onne, 92 N. J. Eq. 627, namely, that a temporary injunction should not be granted when the right of the complainant depends upon an unsettled question of law. In this case the only question involved is whether or not men shall be held to fair dealing and a compliance with the valid contracts that they make.

I will advise an injunctive order.


author: Bentley, Y. C.

text:
    Edwin N. Hopson, Jr., petitioner, v. Mildred W. Hopson, defendant.
    [Decided January 3d, 1924.]
    1. Alimony is the support or living expenses of the wife, as distinguished from the allowance of counsel fee or provision for extraordinary expenses of suit.
    2. A wife in a divorce suit is more favored in the matter of counsel fee than when-she seeks alimony.
    3. A refusal of alimony pendente lite is no bar to the allowance of counsel fees.
    On petition, &c.

      Mr. William I. Lewis, for the petitioner.

      Mr. Alfred F. Skinner, for the defendant.
   Bentley, Y. C.

On the final hearing it was represented by the defendant’s counsel that he and his adversary had agreed that he should not apply for alimony or counsel fee prior thereto and that his right to make such application was to be preserved until the final hearing or some subsequent occasion. Why such an unusual course was pursued I am at a loss to understand. However, after the hearing and upon the application for tile signing of the decree defendant’s counsel availed himself of the opportunity to present the matter so deferred, and I disposed of everything at that time except his right to a counsel fee. Some confusion has been caused by a more or less loose meaning applied to the term “alimony.” Wherever I use that word I have in mind the support or living expenses of the wife, as distinguished from the allowance for counsel fee and the provision frequently made for extraordinary expenses of the suit.

The difference between counsel was as to whether or not the wife, having been unsuccessful, was entitled to any counsel fee allowance. It was agreed that the entire motion should be viewed in the light of the determination of the case; or, in other words, as if it would have been made to appear to the court had the application been made in the ordinary course that the wife would probably not be successful. That, as well as other reasons, precluded any allowance for the wife’s support; but it seems to me that the question of counsel fee or suit-money stands upon a very different footing.

It must be common knowledge among the bar that the wife in a divorce suit from the bonds of matrimony is even more favored in the matter of counsel fee than when she seeks alimony, and for perfectly apparent and sound reasons. At most, it must be confessed that even in the flight of the most abundant ex parte proofs the opportunity to weigh the eventual rights of the parties is far less than after the assist anee of final hearing, and while in a doubtful case no irremediable harm is done by a refusal of alimony it would be a most grievous and irreparable injury were a mistake to be made in withholding counsel fee so that the unfortunate woman would be barred from an opportunity to properly present her case.

“Equality is equity.”

Bishop, in his work on Marriage, Divorce and Separation, volume 2, section 976, says:

“Natural justice and tlie policy of the law alike demand that in any litigation between husband and wife they shall have equal facilities for presenting their case before the tribunal. This requires that they shall have equal command of funds. So that if she is without means, the law having vested the acquisition of the two in him, lie should be compelled to furnish them to her, to an extent rendering her his equal in the suit.

And again in section 992:

“It would be a disgrace to the law and a grievous offence against justice if after a woman had given her person and property in marriage to a man with whom afterwards a litigation arose as to the conduct of either in the new relation, or as to the validity of the marriage itself, she must sustain her prosecution or defense without the money essential thereto, and with no possible access to the fund which she had contributed to accumulate. Hence, the doctrine and practice of suit-money.”

Prior to the passage of the Married Woman’s act the allowance of alimony was sometimes placed upon the footing that her property had passed into the dominion of her husband upon coverture and that, therefore, it was only just that out of the same he should make her an allowance pendente lite. This does not weaken the force of what has just been said, and in- the recent case of Oram v. Oram, to be mentioned presently, the matter was investigated, of course, long after the statute had stripped the husband of his absolute dominion over the wife’s setate.

Counsel for the petitioner has cited in his brief many cases of sister jurisdictions; but no assistance, obviously, can be obtained therefrom, as pointed out by the above author in section 974. The only authority cited in this court is Main v. Main, 50 N. J. Eq. 712, where Vice-Chancellor Green (at p. 717) said:

“I will advise the allowance of an additional counsel fee of $50. I will advise an order for the payment of alimony pendente lite to cover the following amounts: Hotel ex-

penses, $17,86; traveling expenses, $20.43 and $5.50, aggregating $43.79; and an additional counsel fee of. $50.”

Prom this is it argued that there can be no distinction between the circumstances under which alimony for the support of the wife pendente lite may be ordered, and, on the other hand, the giving of counsel fee; but it must be evident from a reading of the second sentence in connection with the first just quoted, that the vice-chancellor was not dealing with alimony in the ordinary sense, but with the allied and entirely distinct items of suit-money. An examination of the whole opinion will disclose that alimony pendente lite, in the ordinary acceptation of the meaning of that phrase, was not under consideration and was not allowed, although counsel fee was.

On the other hand, Chancellor Williamson, in the case of Anthony v. Anthony, 11 N. J. Eq. 70, allowed counsel fee, although the circumstances of the proofs were such- that he refused any allowance for the wife for her support. In the case of Oram v. Oram, 77 N. J. Eq. 1, Vice-Chancellor Emery dealt with the subject under examination here, and at page 6 distinctly ruled that the refusal of alimony pendente lite presented in itself no bar to counsel fee; and in that case, as in the Anthony Case, temporary alimony was refused and counsel fee allowed. Indeed, Mr. Biddle has poihted out, in his New Jersey Divorce Practice {2d ed.) 170, not only the above rule, but cited the case of Clare v. Clare, 19 N. J. Eq. 37, where (at p. 41) Chancellor Zabriskie made an allowance for counsel fee to the unsuccessful petitioning wife.

In the present case the husband was the petitioner. He had brought his wife into this court to litigate. She answered his petition, denied the desertion and filed her counter-claim, alleging that the desertion was not hers, but the petitioner’s. The case, as it would have been presented to me, had an application for counsel fee been made in the regular course, would not only have presented a probability that the wife might succeed in her defense and on her counter-claim, but even after final hearing it was not until I had gone carefully over a transcript of the proofs that I was able to make up my mind that she was the deserting party. Under these circumstances, and viewing the case from the proofs that would have been submitted to me under the circumstances I have referred to, it is indubitable that a counsel fee would have been ordered.

Considering- the station in life of the parties, the fact that the petitioner is a successful professional man, admittedly in receipt of a large annual income, the standing of defendant’s counsel, and the long and hard-fought contest, I will advise that the petitioner pay a counsel fee of $500.

Since filing this opinion the chancellor has called my attention to his opinion in Verbeeck v. Verbeeck, 93 N. J. Eq. 17, in which he held (at p. 20) that the matter of costs in a divorce suit is sui juris, and clearly indicated that the broadest principles of justice should be applied for the purpose of giving a defendant wife who denies wrong-doing everj' reasonable opportunity to present her defense. In that opinion the chancellor based his conclusions, in part, so far as this phase of the case is concerned, upon Oram v. Oram and Main v. Main, supra, as well as the quotation from Bish. § 992, appearing above.

In addition, it is provided by the sixth section of the Chancery act of 1915, that the court may charge even the successful party with costs, or a reasonable counsel fee, or both, “in any case in which the court shall deem it just to do so.”