text:
    The Rector, Wardens and Vestrymen of St. James Church v. Edmund Wilson, attorney-general, et al.
    [Decided May 13th, 1913.]
    Testator bequeathed $14,000, after the death of certain life-tenants, to complainants, the rector, wardens and vestrymen of a certain Episcopal church, in trust, to erect a church on a tract conveyed by testator to complainants during his lifetime. When testator died, the neighborhood was a flourishing one by -reason of a racetrack there, but, this having been terminated, the village stagnated, and there was no prospect of any reasonable growth of such population or that a new Episcopal church could be maintained there if erected.—Held, that such fact did not cause a failure of the charity, but that the fund would be paid over to complainants, to be used for the benefit of the Episcopal church in the neighborhood in a manner to be determined by the court.

      On pleadings and proof.

      Mr. Gilbert Gollins and Mr. Thomas V. Arrowsmith, for tlie complainant.

      Mr. Edmund Wilson, attoi'nejr-general, defendant pro se.

      Mr. William J. Leonard, for the other answering defendants.
   Lewis, Y. C.

The bill is filed to obtain direction and a construction of the will of Edmund West, who died May 8th, 1885, leaving a last will and testament duly executed and admitted to probate in the office of the surrogate of the county of Monmouth, whereby he gave the sum of fourteen thousand dollars ($14,000) to his executors therein named to pajr the income thereof to one Rufus T. West, and to one Emma D. West, during their joint lives, and upon the death of the survivor, without either of them leaving issue, then to pay the said sum of fourteen thousand dollars ($14,000) to the complainants, the rector, wardens and vestrymen of St. James Church, in trust, for the purpose of building and erecting a church to be named "St. Mary’s Episcopal Church,” on a certain tract of land conveyed by the testator to the complainants during his lifetime, which tract of land is situated near Wolf Hill, in the township of Eatontown, in the county of Monmouth and State of New Jersey; the said church to be built within the space of three years after the happening of the contingency upon which, the said gift was to take effect. Emma D. West died on the 31st day of December, in the year 1896; Rufus T. West died on the 8th day of February, in the year 1908, neither of them leaving any issue, and upon the death of the said Rufus T. West, the said sum of fourteen thousand dollars ($14,000) came into the hands of the complainants. At the time of the death of the said testator, the neighborhood of Wolf Hill was a growing and flourishing one by reason of the Monmouth Park Association, which were used during many months of the 3rear for the racing of horses, furnishing emplo3rment to large numbers of persons in the vicinity and attracting large numbers of transient visitors, and of persons who resided there during the whole of the summer months in the vicinity. After the year 1892 the Monmouth Park Association ceased to hold race meetings upon its grounds and the buildings thereon were dismantled and torn down and the railroad tracks running thereto were taken up and carried away, and the lands of said association were sold and conveyed to other persons. The proofs show that the discontinuance of the said race meetings has resulted in the complete stagnation of the village of Oceanport, which had grown up in the vicinity of Wolf Hill by reason of the large business and trade which had arisen by reason of the numbers of persons attracted to the vicinity by the said race meetings, that the population of the said village had stagnated, if not declined. There is no prospect of any reasonable growth of such population, and as a result, an Episcopal church erected on the said lot at Wolf Hill could not reasonably be expected to be supported, either financially or by the attendance of a com gregation, because of the veri' few members of the Protestant Episcopal Church in or near the locality of Wolf Hill. The proofs also show that such members as do reside in the vicinity are affiliated with other congregations of the Protestant Episcopal Church now in existence. No new parish can be created at such place under the canons and laws of the Protestant Episcopal Church in the United States of America for lack of assurance that sufficient money could be raised to pay the annual salary of a priest to conduct the services in such church, and for lack of a sufficient number of male communicants of the Protestant Episcopal Church to comprise a lawful vestry of governing body thereof under the laws of the State of New Jersey.

In view of these facts it seems to me highly undesirable and contrary to public policy to carry out the particular intent of the testator to complete a church building to be named “St. Mary’s Episcopal Church” on the tract of land in question.

The learned and exhaustive opinion of Judge Green, in the ease of MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. (1 Robb.) 652, clearly establishes the doctrine of cy pres in the jurisprudence of this state. In this case the New Jersey decisions on the subject are considered with the greatest of care and are examined in detail. The rule to be gathered from such consideration seems to be that the general charitable intent of a testator may be carried out in case it should be undesirable, impraoticable or against public policy, although not impossible under altered circumstances to carry out the special intent. The subject has been dealt with in several decisions of the court of chancery since the MacKenzie Case, and while in the case of Brown v. Condict, 70 N. J. Eq. (4 Robb.) 440, the court refuses to make cy pres application on the ground that it was impossible at the time of the death of the testator to carry out his actual charitable intention, yet it avows that cy pres application can be had even in this event, if the general intent of the testator can be accomplished.

The suggestion of the solicitor of the residuary legatees, that the trust is void for impossibility, does not appear by the facts in this case. The charitable legatee here not only exists but is able to carry out the trust, and applies to this court for an application of cy pres, so that the terms of the trust should be modified so as to meet conditions which have changed since the making of the will.

It appears from the last will and testament of the testator that his general charitable intent in making the gift was to benefit the Protestant Episcopal Church in the neighborhood of Wolf Hill, and I am satisfied that it was his will that such general charitable intent be carried out in the event that it should prove undesirable, impracticable or contrary to public policy to carry out the particular intent.

My conclusion is that the defendants, the next of kin of the testator, are not entitled to any of the fund, and that the said fourteen thousand dollars ($14,000), with its accumulations, must be disposed of by the complainants for the benefit of the Protestant Episcopal Church in the United States of America in the neighborhood of Wolf Hill, in such a manner as will most nearly effect the general charitable intention of said testator, Edmund West, and the complainants must propose a scheme in this court for the disposition of the said fund in accordance with the findings of the court.

The cross-bill of the defendants will be dismissed.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Middlesex Transportation Company v. The Pennsylvania Railroad Company.
    [Submitted December 4th, 1913.
    Decided December 4th, 1913.]
    1. The rule that a demurrer to a bill in equity confesses as true all matters that are well pleaded is subject to the exception that, when facts are averred which run counter to facts of which the court takes judicial notice, the averments will be disregarded.
    2. Though a canal with a basin attached is a public highway, it is nevertheless a highway of a particular kind, with natural limitations on its functions and subject to reasonable regulations and control, so that the policy of those operating it of closing it to navigation during the winter season is not an unlawful invasion of the rights of the users.
    3. Judicial notice is taken of the seasons and their natural influences on material things, including the fact that canals in New Jersey are closed to navigation in the winter.
    4. Complainant transportation company operating boats through defendant’s canal is not entitled to restrain the closing of a basin, operated in connection with the canal, where complainant docked its boats, during specified winter months, prior to a determination at law that defendant owed complainant the duty to keep the basin open during such season.
    5. Whether equity has jurisdiction may be raised by demurrer to the bill.
    6. Where complainant operated boats through defendant’s canal, but had no different rights therein than were common to the public in general, it could not maintain a bill to enjoin the closing of a basin attached to the canal during certain winter months on the ground that the obstruction was a public nuisance.
    7. Where complainant operated boats through 'defendant’s canal, and defendant threatened to close a portion of the canal during certain winter months, which complainant alleged would result in a loss to it of at least $500 a day, complainant had an adequate remedy at law by application to the board of public utility commissioners as provided by P. L. 1911 p. 371¡, or by mandamus, or by action for damages, in the absence of any question as to defendant’s ability to respond, and hence was not entitled to enjoin the closing of the canal.
    S. Where, on demurrer to a bill, it appeared that, taking the charges as true, the bill would be dismissed on final hearing, the demurrer would be sustained and the bill dismissed.

      On demurrer to bill.

      Mr. George S. Silzer, for the complainant.

      Mr. Theodore Strong, for the defendant.
   Backes, Y. C.

The object of this bill is to compel the defendant to maintain and operate a part of the Delaware and Baritan canal at New Brunswick, during the winter season until the elements make it impossible.

The bill was filed January 'rth, 1913, and avers that the complainant is a common carrier of freight by boat between New Brunswick and New York, and carries approximately three hundred tons of freight daily. Its dock at New Brunswick, of about four hundred feet in length, is located on what is known as the lower basin of the canal, and was built in 1912. This basin is about a mile in length, about one hundred and twenty-five feet in width and extends from the upper lock of the canal proper to an outlet lock into the Baritan river, where the tide ebbs and flows to a rise and fall of about six feet. • A tow-path divides it from the river. In the use of the basin, the boats of the complainant pass under a draw-bridge at Albany street and through the outer lock into the Baritan river, both of which are operated by employes of the defendant, free of charge. The use of the basin is also free. The basin is a continuation of the Delaware and Baritan canal, which commences at Bordentown and ends at the upper lock, and is operated by the defendant, tolls being paid for its use. Notice was served on the complainant by the defendant that the canal proper would be closed on December 20th, 1912. It was not closed, but continued to remain and was open for use at the time the bill was filed. The complainant was informed by the bridge and lock tenders, employes of the defendant at the outlet-lock and Albany street bridge, that their employment would cease on January 1st, 1913. The complainant received notice on January 6th, 1913, that the water would be withdrawn from the lower basin on the following day, as soon as the boats of the complainant passed out of the basin. The basin can be nsecl at any and all times until the weather becomes extremely cold and heavy layers of ice are formed. The defendant threatened to close the basin to the use of the complainant, and that it would probably remain closed until March 17th, the usual time when the same is opened. The closing of the basin would cause a loss to the complainant of approximately $500 a daj7. The defendant gave as an excuse for the closing of the basin, that it is necessary to inspect and repair the wickets of the lock once in each four years. There are two locks at the outlet-lock, one of which the defendant has permitted to fall into disuse and that if the same were in repair and in full service, one lock could be used while the other was being repaired. There is no reason for closing the basin, and that whatever repairs are necessary can be made after the basin would be closed by reason of the extreme cold weather. No right exists in the defendant to close the basin; that the same is a public highway to which the public has a free and open use at all times. The defendant has never received the right to close the said highway. The basin is maintained for the convenience of the defendant, subject to the free and uninterrupted use thereof of persons desiring to use the same as such public highway. The complainant has been in business about eight years, and during former seasons when the basin was closed, it operated its boats from docks of the defendant company located on the Baritan river, which were torn" down in the fall of 1911. There was a winter season when the canal and basin were closed, when the boats of the complainant did not lose a single trip and at other times many trips were made after the complainant was barred from the canal basin. The defendant pretends that it is necessary to close the basin for repairs and for other purposes, which is untrue. It is not necessary at this time (the time of the filing of the bill), or at any time, for the defendant to close the lower basin, and it is only necessary that the same should be closed when closed by the elements. The bill prays that the defendant be decreed to keep the lower basin open for the use of the complainant’s boats until the same is closed by the elements, and for an injunction to prevent the defendant from closing the basin to the use of the complainant, and that the defendant may be decreed to open and close the outlet-lock and the draw-bridge when necessary, for the complainant’s boats to pass through the same. This recital of the bill is almost verbatim.

The canal, I assume, is the one built pursuant to an act to incorporate the Delaware and Earitan Canal Company, passed February 4th, 1830 (P. L. 1830 p. 78), by that company, and I also assume that the Pennsylvania Eailroad Company is operating it as lessee, although as to both of these matters the bill is silent.

The defendant filed a general demurrer to the prayer for discovery and relief, and assigned as special causes that the -complainant has an adequate remedy at law, and that its right to relief must be first established by a judgment in an action at law, before it can be recognized or enforced in this court.

It will be observed that the bill alleges that the canal basin is a public highway and that there is no need or reason for closing, and that the defendant has not the lawful right to close it during the winter season; and inasmuch as it is the rule that a demurrer confesses to be true all matters which are well pleaded, it is claimed that the defendant is therefore concluded by these averments. But there is this exception to the rule: that when facts are averred which run counter to facts of which the court takes judicial notice, the averments will be disregarded. Dan. Ch. Pr. 546.

It is fairly inferable from the bill that the defendant’s uniform course has been to interrupt navigation during the winter months, and that the threatened pursuit of this practice in the present year is the wrong complained of. The good faith of the defendant in the doing of this is not assailed. The contention is that to enforce any regulation in the use of the canal, no matter how needful in the conservation of the defendant’s property, or reasonable in anticipation of zero weather, which would prevent navigation at a time short of the action of the elements, would be an unlawful invasion of the complainant’s rights. That the canal, as well as the lower basin, which is a paid; of the canal, is a public highway, is declared by the act of incorporation and has been settled by the authorities in this state. Barnett v. Johnson, 15 N. J. Eq. (2 McCart.) 481; Morris Candal and Banking Co. v. Fagan, 18 N. J. Eq. (3 C. E. Gr.) 215; Bonaparte v. Camden and Amboy Railroad Co., Baldwin 205. It is, however, a public highway of a peculiar kind, with natural limitations upon its functions, and subject to reasonable regulations and control. The single circumstance of the use of water as the means of transportation repels the idea that a canal is to be maintained as a public highway during a season of the jrear when the use of that commodity is usually destroyed by the forces of nature, and it must be recognized that the policy of closing a canal to' navigation during the winter season is well within the rights of the management. Judicial notice is taken of the seasons and their natural influences upon things material, and it seems to me that .the defendant’s regulation of closing its canal during the winter months finds its warrant and j ustification in the likely effect the elements would otherwise have upon its property and operations during that period.

But even though I should regard the defendant’s administration as open to judicial attack, I am unable to discover a disturbance of any legal right of the complainant which this court may notice or redress, or any equitable grounds upon which its jurisdiction may be invoked. No statutory duty is involved. The grievance complained of is simply a threatened invasion of an asserted legal right and the relief sought is the protection of that right, which right to protection is, as a matter of law, not clear and settled, and must, before it can receive vindication here, be first established in the law courts. “A court of equity may interpose, under some circumstances, to protect a legal right, as when a violation is threatened or is being actually committed, which will do irreparable damage, but it must be made clearly to appear that the complainant has the right he claims, for if he is without right, the court is without jurisdiction. 'There can be no damage, irreparable or Otherwise, where there is no violation of a right. To justify the interference of a court of equity in such a ease the legal right set up by the complainant must be clear, for, as was said by Mr. Justice Dixon, speaking for the court of errors and appeals, in Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665, where the question is one of legal right, a condition precedent to the right of the complainant to bring his adversary into a court of conscience is that the latter’s conduct, which is claimed to be wrongful, shall appear to be unconscientious, and that this cannot be shown, unless it is made to appear that the defendant has violated a legal right which had been previously established against him by a judgment at law, or which, on the admitted facts of the case, appears to be free from doubt or question. The complainants do not complain that the defendants have invaded their property, and are there wantonly committing great and serious damage, nor that the defendants are so using their own property as to cause irreparable injury to the complainants’ property, but their complaint is that the defendants refuse to give them such use of their (the defendants) property and servants as they are entitled to by law, and that they suffer irreparable harm in consequence. What the complainants want is that the court shall, for their benefit, control the defendants not only in the use of their ■ property, but in the conduct of their business. Nothing short of a case of the most extreme necessity, where the legal right is entirely free from doubt, the injury great and ruinous, and the defendants’ conduct wholly indefensible, would justify the exercise of so strong a power by any judicial tribunal.” Delaware, &c., Railroad Co. v. Central Stock Yard and Transit Co., 45 N. J. Eq. (18 Stew.) 50 (at p. 65); 46 N. J. Eq. (1 Dick.) 280. The discussion of the principle and the facts in the ease cited is singularly apposite tOi and entirely dispositive of, the case made by the complainant’s bill. Vice-Chancellor Garrison in Jacquelin v. Erie Railroad Co., 69 N. J. Eq. (3 Robb.) 432, illuminating the rule that the complainant’s legal right must be clear before equity can intervene, says: “I understand that what is meant by this rule is not that the precise question has ever been settled by the courts of law of this state, but that the precise principle has been thus settled. The broad general principle has undoubtedly been settled in this state that common carriers are under a legal duty to serve the public, and in cases where, under their charters'or under the statutes, a duty is manifested, the courts will compel them to perform such duty. But the complainants in this case must go much further than this, and must demonstrate that the courts in this state have established the principle that at common law and in default of legislation a court of law will hold it to be the duty of a common carrier to locate stations at such points as the court shall determine, or at least not to discontinue stations at points where the court shall determine that they should remain. The complainants must show that our courts have established a principle which does not stop short of holding that the whole matter of regulating the method, manner, kind and quantity of service that common carriers shall render the public has, in cases in which the legislature has made no provision, been committed to the courts for determination and decision.” Fritts v. Delaware, &c., Railroad Co., 75 N. J. Eq. (5 Buch.) 384.

The objection of the complainant that the question of jurisdiction cannot be raised upon demurrer, is unsubstantial. Dan. Ch. Pr. 549; Story Eq. Pl. § 472; Mitf. Pl. 89; Rotholz v. Schwartz, 46 N. J. Eq. (1 Dick.) 477.

On the argument the complainant’s counsel urged that the defendant’s threatened conduct to void the basin, even temporarily, would be an obstruction to a public highway and a public nuisance, which a court of equity will enjoin. If we should entertain the allegations of the bill in this narrow and restricted view, which is altogether inadmissible, it cannot avail the complainant, because it fails to show some special injury peculiar to itself, aside from and independent of the general injury to the public. The right which the complainant has in the use of the canal arises out of the defendant’s legal duty to furnish means of transportation over the highway to the public, and this right and duty is not enlarged because the complainant’s landing place is located upon the defendant’s canal basin. It does not appear by the bill under what circumstances the complainant chose to put its dock at this point, and in.the absence of allegations, it is not to be assumed that any additional rights or duties flow from this circumstance; and it follows that the wrong to be suffered by tire complainant wall be to its right of navigation in common with the public at large and for which it cannot have redress. High Inj. (4th ed.) § 762; Hinchman v. Paterson Horse Railroad co., 17 N. J. Eq. (2 C. E. Gr.) 75; Allen v. Board of Chosen Freeholders, 13 N. J. Eq. (2 Beas.) 68; Zabriskie v. Jersey City and Bergen Railroad Co., 13 N. J. Eq. (2 Beas.) 31b; Humphreys v. Eastlack, 63 N. J. Eq. (18 Dick.) 136.

The complainant lias a complete and adequate remedy at law. Eecourse may be had to the board of public utility commissioners (P. L. 1911 p. 87b), or to proceedings by mandamus, possibly upon its own relation or maybe as a relator in the name of the attorney-general. Jacquelin v. Erie Railroad Co., supra. An action for damages will furnish full relief. • The apprehended invasion of the complainant’s right will not involve an irreparable injury. The injury is not of a permanent, continuous or recurring nature. Rogers, Sc., Works v. Erie Railway Co., 20 N. J. Eq. (5 C. E. Gr.) 379; Barnett v. Johnson, supra. In so far as the bill discloses, it is of a most temporary and transient kind. The averment is that the defendant threatens to close the basin, between the time'of the filing of the bill and March 17th, then next. It is true that the complainant alleges that the defendant gave “as an excuse for the closing of said lower basin, that it is necessary to inspect and repair the wickets on said lock once in each four years,” but this meagre statement does not amount to an averment that the defendant threatens to again close the basin four years hence. That the closing of the basin will destroy or even diminish the complainant’s trade is not averred, nor is it to be implied. It may be that in the carrying on of its trade as a forwarder, the complainant will be obliged to dock its boats at some other point along the Earitan river at New Brunswick, which may be less convenient and involve costs of additional hauling, but this loss can be readily ascertained in dollars and cents. In fact, the bill measures the complainant’s anticipated loss at the sum of $500 a day. No question is raised as to the ability of the defendant to respond. In the ease of Sperry S Hutchinson Co. v. Hertzberg, 69 N. J. Eq. (8 Robb.) 264, Vice-Chancellor Stevenson said: “It is not alleged that the defendant is not fully responsible for anjr amount of damages which the complainant could possibly recover against him in an action at law. While the defendant’s operations may cause damage to the complainant in its business, there is nothing to justify the apprehension that such damage will be permanent or so extensive during the period which will be required for the ascertainment at law of the complainant's right as to make the complainants compensatory recovery at law, in case he secures one, in any degree inadequate. The fact that the damages of the complainant majr be difficult of ascertainment, and the fact that the defendants conduct, if illegal, amounts to a continuous violation of the complainant’s rights, are not circumstances which can be recognized in this court, as the law stands to-day, as taking the case out of the operation of the well-settled general rule.”

It being an absolute, certain and clear proposition that taking the charges in the bill to be true, the bill would be dismissed on final hearing (Vail's Executors v. Central Railroad Co., 23 N. J. Eq. (8 C. E. Gr.) 466), the demurrer will be sustained and the bill dismissed, with costs.


author: Backes, V: C.

text:
    William C. Jones v. Anna P. Read Jones.
    [Argued November 25th, 1913.
    Decided December 2d, 1913.]
    1. The rule that a bill of review to open a divorce decree cannot be filed after the statutory time to take an appeal from a decree does not apply to default decrees in ex parte cases procured by imposition and fraud, of which the court, as well as the state and the defendant, are the victims.
    2. Where a divorce is granted on defendant’s default, she cannot appeal, so that, where the decree is obtained by fraud, the defaulting- party may file a petition to set it aside though the time to appeal has expired.
    3. Where a default divorce decree was obtained by fraud, the wife’s remedy was not limited to a bill of review, but she was entitled to invoke a summary remedy by petition to set aside the decree, provided she acted .promptly on discovering the fraud.

      On motion to dismiss petition to vacate decree of divorce.

      Messrs. Bourgeois .<& Coulomb, for the petitioner.

      Mr. Floycl 11. Bradley, for the defendant.
   Backes, V: C.

The question presented on this motion is whether, after the expiration of the statutory period for the taking of an appeal, this court has the power, on petition and order to show cause, to set aside a decree of divorce in an ex parle suit, obtained by fraud.

The petition for divorce was filed August 17th, 1912, and alleges a desertion by the defendant in June of 1906. The defendant defaulted, and a reference was made to a master. Hpon his report a decree nisi was entered January 17th, 1913, and on July 18th following a final decree of divorce was granted. I have examined the proofs taken before the master and find them barely sufficient to sustain the decree. In substance, the petitioner swore that in the fall of 1906, while he was in Denver, his wife, without his consent or knowledge, moved their household effects from Camden to Swarthmore, Pennsylvania, where she has ever since resided with her now adult son and daughter, and has since refused to have communication with him, although he has diligently pursued her to effect a reconciliation. The petitioner’s testimony was not put to the test of cross-examination by the master, as it should have been. If it had, there might have been an adverse report. The corroborating testimony is meagre and weak, and the failure of tire petitioner to call his children, with whom he was on intimate terms, and who were familiar with all of the circumstances, is especially significant and should have attracted the master’s attention.

On November 18th last the defendant petitioned to set aside the decree, alleging that she first had knowledge of it on the preceding 27th day of October. The time had then expired for the taking of an appeal from a decree of divorce. She avers that after she was served with process, her husband promised to abandon the suit and persuaded her not to interpose a defence, and because of this she failed to defend herself. She denies the desertion, and avers that in 1906, at the time of the supposed desertion, her husband purchased a house in Swartlnnore and to it moved his household goods from Camden; that she and their children moved to Swarthmore with her husband’s consent and approval. That since that time her husband has declined to see or to speak to her, although she lias frequently made advances, and that he has altogether ignored her, except to furnish the means for the household expenses. Her story is very fully supported by her two children, her two sisters and a niece of the husband, and by letter communications from him.

On the return of the order to show cause, motion was made to dismiss the petition, on the ground that this court is without power, after the time has expired for the taking of an appeal, to set aside a decree taken by default, even though it was obtained through fraud practiced on the defaulting party by her adversary, whereby she was deprived of her opportunity to present her defence, and by fraud perpetrated upon the court. Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632; Cook v. Weigley, 69 N. J. Eq. (8 Robb.) 886; Spark v. Fortescue, 75 N. J. Eq. (5 Buch.) 586, are cited to support, the contention.

I do not understand that the rule laid down by the court of errors and appeals in these cases that a bill of review or a petition to open a decree cannot be filed after the expiration of the statutory period within which an appeal can be taken from a decree, applies or was intended to apply to decrees in ex pa/rte cases, procured as the one in this case was, whose sole foundation rests upon imposition and fraud, of which the court, as well as the state, “the interested third party,” and the defendant, are the victims. On this motion the proofs contained in the moving-papers must be taken as true, and if true, one cannot escape the conviction that the decree was obtained by deceit and perjured testimony and that the records of this court have been basely defiled, the interest of the state has been imposed upon and the rights of the defendant .grossly and unconscionably outraged. Surely, the rule was never meant to tie the hands of this court in circumstances of this kind, nor to deprive the court of its inherent power to purge its records of false decrees foisted upon it by corrupt and fraudulent suitors, and to do this in a most sum-, mary fashion by petition and motion, even after the time has passed for the taking of appeals in cases where an appeal will lie.

In Kearns v. Kearns, 70 N. J. Eq. (4 Robb.) 483, in which the facts were somewhat similar, although the point of this motion was not involved, 'Vice-Chancellor Stevenson had before him the question whether the bill was original or one for review to set aside a fraudulent divorce, and in holding it to be the latter upon the ease made, says: “There is another reason, in my opinion, why the complainant’s bill should be deemed strictly a bill of review. The complainant had no notice of the divorce suit which the defendant brought against her. She had no opportunity to be heard. The cause was tried ex parle. She now comes forward, alleging her surprise, her lack of opportunity to present her case, and offers proofs that fraud was practiced and injustice done which would not have occurred if she had had an opportunity to present her defence. In this sort of a ease no bill of review is necessary, even though the decree has been enrolled.” And further: “Where the party aggrieved by a fraudulent or unjust decree is able to obtain full relief upon a petition for the vacation of the enrollment and the opening of the decree, it seems to me that in many, if not all, cases an application for leave to file a bill of review ought to be denied. * * * In my opinion, the application by petition in the cause to vacate the enrollment and open the decree is to be encouraged, if not exclusively prescribed, in all cases where such procedure will accomplish justice.” White v. Smith., 72 N. J. Eq. (2 Buch.) 697.

There is also this reason why the doctrine of the cases cited is not applicable here. In eases ex parte, the defaulting party cannot appeal (Townsend v. Smith, 12 N. J. Eq. (1 Beas.) 350; Sparks v. Fortescue, supra), and hence, on a motion to set aside a. decree thus obtained, the rule cannot prevail, because the ground upon which the rule rests does not exist.

Moreover, as I understand it, the court of errors and appeals in the Watkinson Case, and those that followed, did not intend to lay down a hard and fast rule which was to obtain under all circumstances and conditions, nor to prevent this court from proceeding by petition in case where a bill of review would lie. Obviously, such a bill could be maintained in this case, and the reason for the rule proves it to be no obstacle to a summary proceeding. The rule is one of limitation upon the right of action in given eases, in analogy to the time allowed for an appeal, and not upon the form of the remedy where the right of action exists.

In the Walldnson Case, in which the doctrine relating to limitations upon bills of review was first adopted in this state, the court found that there was no fraud, and disposed of the facts as insufficient to maintain the bill. Mr. Judge Vroom, in laying down the rule, clearly pointed out that a bill of review would lie if the "case could be brought strictly within the exception of newly-discovered evidence, or of some special equity that would ■ give the court the discretional power to make the order.” The special equity alluded to is fraud on the court or on the party, as shown by the facts in that case, and the newly-discovered evidence is therein referred to as "the ignorance of the petitioner of the existence of a decree of divorce until after the time for the appeal had expired.”

In Cook v. Weigley, the rule was restated and enforced upon a petition to vacate a decree in a litigated case after an affirmance by the court of errors and appeals. The decree attacked was the decree of the appellate court, and possibly the application, if a proper one, should have been addressed to that court. Kimberly v. Arms, 40 Fed. Rep. 548.

In Sparks v. Fortescue, it was again maintained in a litigated case, where there was no fraud or imposition.

The petition in this case was filled promptly after the discovery of the fraud. I shall follow the modern practice of proceeding by petition instead of the ancient cumbersome and expensive bill to review'. I will hear the-case on its merits. Issue may be joined, by filing an answer to the petition, and a day will be set for the taking of testimony.


author: Backus, Y. C.

text:
    Michael Ronan et al. v. Thomas M. Barr.
    [Argued November 11th, 1913.
    Decided December 8th, 1913.]
    1. Where complainants’ bill to enforce an implied restrictive covenant upon lands alleged that the common grantor, which owned the fee to a number of the lots, to induce persons to buy, adopted a general plan for their development which provided that each lot should be subject to a covenant not to build on the described premises any building costing less than $3,000 or to permit the premises to be used for a milk stable, piggery, hennery, slaughter-house, or certain other described purposes, or any other nuisance whatsoever, complainants cannot recover on representations by the common grantor that the premises should be used for residential subdivisions only; that matter not being pleaded.
    2. Restrictive covenants upon land are to be strictly construed, and, unless the right to restrict is clear, an injunction will not issue to enforce the covenant.
    3. A general covenant relating to land, which inhibits the erection of any building on lots costing less than $3,000, cannot be construed as prohibiting the erection of any structure other than a dwelling-house, for the word “building” has a broader signification.
    4. Under a restrictive covenant relating to lands and prohibiting the use of any of the lots for any nuisance whatsoever, lot owners have no right to enjoin the erection of a public garage; a public garage not being a nuisance per se.

    5. In an action to enforce restrictive covenants upon land, where the bill did not count upon representations and a general purpose to make a residential district out of the land, evidence tending to show that the vendors intended the land to be used for residential purposes is inadmissible.
    On final hearing. On bill, answer and proofs.

      Mr. George 8. Silzer, for the complainants.

      Mr. Edward IT. Hicks, for the defendant.
   Backus, Y. C.

This is a biil to enforce an implied restrictive covenant upon lands. The case made by the bill is: On August 3d, 1907, the Metuchen Building Company acquired the fee to lots Nos. 3, 24, 25, 26, 27, 28, part of 4 and 5; a part of lots Nos. 16 (and 17), and lots Nos. 7,11,12, 13,14 (15), 18, 19, 20, 21 and 32 of a plot entitled “A map of 32 lots belonging to the estate of E. S. Peck, situate at Metuchen, New Jersey.” In order to sell the lots and induce persons to buy, the company adopted a general plan and uniform scheme for their development, which included that each lot should be sold subject to this covenant:

“1. That the said party of the second part, his heirs-at-law, legal representatives or assigns will not erect or permit, on any part of the herein described premises any building costing less than three thousand dollars.
“Excepting, however, such barn, stable or other building for horses and •vehicles as is appurtenant to a private residence, but no part of such barn and stable, if erected, shall be less than one hundred feet from the northerly line of Highland avenue nor shall more than one such building and one such stable be erected or 'permitted on the premises herein mentioned and described.
“2. And the party of the second part, for himself, his heirs-at-law, legal representatives and assigns further covenant that he or they will not use or 'permit to be used, the said premises or any part thereof for a milkman’s stable, piggery, hennery, slaughter-house, smith shop, forge, furnace, brass foundry, tin, nail, or other factory or any manufactory for the manufacture or making of gunpowder, glue, varnish, vitriol, ink or preparing of skins, hides or leather or any brewery, distillery, oil or lampblack factory or any other nuisance whatsoever.
“3. And the said party of the second part for his heirs-at-law, legal representatives and assigns does hereby further covenant and agree to and with the party of the first part, its successors and assigns, that neither the said party of the second part nor his heirs-at-law, legal representatives or assigns will sell or suffer or allow to be sold on the premises hereby conveyed or any part thereof, any spirituous liquors or ale, beer or wine or intoxicating liquors of any kind.
“4. The party of the second part, for himself, his heirs-at-law, legal representatives and assigns, does hereby further covenant and agree to and with the party of the first part, its successors and assigns, that no building shall be erected on the premises hereby conveyed nearer than thirty feet from the northerly established street line of Highland avenue. But it is understood that porches or verandas and bay windows of reasonable dimensions from the main building shall be allowed to project into the above mentioned restricted part of the premises hereby conveyed.
“All restrictions and covenants in this instrument contained shall continue in force untii the first day of January, 192S, and.no longer.”

“The reason of said covenants or restrictions in the deeds to' purchasers being intended for the benefit of the said company in selling said lots and securing a good price therefor, and also intended for the benefit of each purchaser of lots upon said tract, the said tract being intended and held out by said Metuchen Building Company to be used only for residential purposes.” Upon application to the company for the purchase of lots, th.e complainants were told that the tract was restricted and that no lot could be purchased unless the deed contained the above covenant, and that each purchaser of a lot would be protected in his purchase in that all other conveyances would be likewise restricted. Eelying upon these representations, the complainant Greenwalds, on April 16th, 1909, bought lot No. 14 and a part of lot No. 13. On April 17th, 1911, the complainant Litterests purchased parts of lots Nos. 12 and 13, and on February 18th, 1912, the complainant Bonans acquired lot No. 28. The covenant was incorporated in the Bonan deed. (The bill does not disclose whether they were inserted in the Greenwalcl and Litterest deeds.) Lansing T. Lippincott bought lot No. 24 on August 14th, 1909, and on July 8th, 1913, Lester B. Hebberd purchased lot No. 19. (They are not complainants.) Their lots are restricted. On September 9th, 1913, the company sold to tire defendant, Thomas M. Barr, lots Nos. 3, 4 and 5, upon whieh he is about to erect a public garage in violation of the covenant. The Barr deed is free of encumbrance. It is charged that he took his title with notice of the company’s scheme and of the restrictions to be imposed in the execution of that scheme. The prayer of the bill is that Barr may make answer “and that he may be decreed to answer why a writ of injunction restraining him, his agents, servants and contractors from proceeding further with the erection of a public garage on said lots.” This is verbatim the special prayer. The bill contains a general prayer for relief, and I shall treat it as including a special prayer for an injunction restraining the defendant from building a public garage.

The Peck tract is a quadrangular plot of. ground, with lots of irregular sizes, fronting on Main street and Middlesex and Highland avenues, and numbered consecutively from Nos. 1 to 31 in-elusive. Lot No. 32 is detached. It was plotted by the Peck estate in 1891, and from time to time the estate sold lots to various parties, without burthen, until August 3d, 1907, when the remaining seventeen lots and parts of lots scattered throughout the tract, were sold to the Metuchen Building Company, the common grantor of the complainants and defendant. Store buildings had been erected on lots fronting on Main street. At this time, lots Nos. 8, 9 and 10, 22 and 23 were occupied by a social club, and lots Nos. 6 and 7 by a civic association. Lot No. 15 and the rear of Nos. 16 and 17 were owned by G-reenwald and his partner Soper, the rear of the lots Nos. 16 and 17 being used for a carpenter shop. No. 30 was occupied by one Hamm as a public garage; No. 29 by a two-family dwelling-house. A fire-engine-house was on lot No. 22, and the land westerly of it and the Hamm garage to Main street was built up by stores, so that when the Metuchen Building Company took title to the remnant of the tract, this heterogeneous aggregation of structures made impossible a uniform plan or scheme of building covering the entire plot. The fact, however, is that the company ventured the imposition of restrictions upon the use of the lots it sold. Sometimes they were put in the deeds and at other times they were stipulated by separate agreement. They vary widely. Some restrict the use of the lots to “buildings,” while others require the building to be a dwelling-house. One owner has the privilege of raising chickens on his lot, which is denied to others. Some may build factories, while others cannot. Factories of certain kinds may be built by one owner; others are prohibited. Some deeds contain a clause against nuisances, which is omitted in others. In fine, instead of uniformity of restrictions, there is confusion.

The complainants’ counsel at the hearing, and upon the argument, urged that it was represented to the complainants at the time they took their deeds, that the lots were to be used for residential purposes only, and that this representation should be construed in connection with the covenant set out in the bill and enforced as a part of the restrictions. I do not pause to consider the merit of this contention except to note that it is not supported by the evidence, for it is manifest that these representations, if made, form no part of the case made by the bill. It will be observed that the bill ties the cause for complaint to a threatened violation by the defendant of the restrictions above set out. The allegation of the bill that the tract was intended and was held out by the company to be used only for residential purposes, is pleaded solely by way of inducement. The pleadings and proofs clearly show that the limitation upon the use of the lots for residential purposes, was not to be greater than these restrictions would afford. That this was the understanding of the complainants at the time they purchased, is clear, for it appears that they were apprised in detail of the terms of the restrictions and bound themselves in the use of their lots only to the extent of the covenant contained in their respective deeds.

I shall assume, without deciding, that the covenant, of which the one set out in the bill is the model, was adopted by the Metuehen Building Company as a part of a locality scheme (although I must say that in a situation so chaotic as we find here, the feasibility of a community plan or scheme is inconceivable), and that the restrictions inure to the advantage of and may be enforced by the grantees of the company against each other upon that theory. Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612 Bowen v. Smith, 76 N. J. Eq. (6 Buch.) 456; Elliston v. Reacher (1908), 2 Ch. 374; or “upon the principle of preventing a party having knowledge of the just rights of another, from defeating such rights.” Brewer v. Marshall, 19 N. J. Eq. (4 C. E. Gr.) 537; Hayes v. Waverly & P. R. R. Co., 51 N. J. Eq. (6 Dick.) 345; Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Gr.) 206; and shall also assume that the defendant, Barr, was cognizant of the restrictions, and that they are enforceable against him. This, then, brings us to the question whether the defendant’s proposed erection of a public garage on lot No. 5 will violate the covenant.

The first paragraph of the covenant interdicts the erection of any “building” costing less than $3,000. The complainants contend that the word “building” means dwelling-house, and that it shotüd be so construed. This is inadmissible. Definition refutes the argument. It cannot be gathered from the context of the covenant that the parties intended the word “building” to imply a certain kind of building. To interpret the word “building” to mean dwelling, would prevent the erection of a church, a theatre, a municipal building, a hotel or private club house, which, without doubt, was not within the contemplation of the parties. I cannot read into the covenant a restriction which the parties did not agree to. Tt is .a well-established principle that covenants which restrict another in ihe use to which he may put his lands are strictly construed, and unless the right to restrict is made manifest and clear in the covenant, a court of equity will not aid by its process of injunction one owner to restrict another in the otherwise lawful use to which he may put his lands. Howland v. Andrus, 81 N. J. Eq. (11 Buch.) 175; Underwood v. Herman & Co., 89 Atl. Rep. 21.

The second paragraph of the covenant proscribes the use of the lots for purposes therein specifically mentioned, “or any other nuisance whatsoever.” The erection of a public garage eo nomine is not prohibited, but it is insisted that to permit- one to be erected and operated would create a nuisance.

To read this into the clause inhibiting nuisances necessarily requires a finding that a public garage is a nuisance per se. This it surely is not. It is a, place for the housing of automobiles. The business is a lawful one, and the presumption is that it will be lawfully carried on. In such circumstances a court of equity will not interfere. If in the prosecution of the business a nuisance is created it may interpose. This court refused to restrain as a nuisance the erection of a blacksmith shop, Butler v. Rogers, 9 N. J. Eq. (1 Stock.) 487; a factory for manufacturing agricultural implements, Wolcott v. Melick, 11 N. J. Eq. (3 Stock.) 204; a pottery, Ross v. Butler, 19 N. J. Eq. (4. C. E. Gr.) 294; a gas works, Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. (5 C. E. Gr.) 201; a slaughter-house, Attorney-General v. Steward & Taylor, 20 N. J. Eq. (5 C. E. Gr.) 415; a saw-mill, Duncan v. Hayes & Greenwood, 22 N. J. Eq. (7 C. E. Gr.) 25; a pest-house, State Board of Health v. Trenton, 68 Atl. Rep. 897. Each of these cases exhibits a situation of impending harm of far greater magnitude than that shown here, and in all of them the court refused to interfere with, the building, although in soxne instances it enjoined a particular method, of carrying on the busixxess which threatened ox-proved to be injurious to others, and ixx this respect a nuisance. In O’Hara v. Nelson, 63 Atl. Rep. 836 (at p. 842), Vice-Chancellor Garrison restrained the storage or use of gasoline within a garage, but he did xxot condexxxxi the garage as a nuisance. While some of the eases caxxxe up oxx motion for preliminary injunction, and others were disposed of on final hearing,.the same principle predominated, that equity will not interfere by injunction to restrain the erection of a building unless the building is so intimately and essentially a part of an unlawful business as to make it apparent that the combination of building and business spells nuisance. As was said in Cleveland v. Citizens Gas Light Company, supra, when it is not made to appear that the business for which the building is .intended, cannot possibly be carried on without becoming a nuisance, this court will deny the injxxnction. These authorities are illustrative of what may constitute nuisances within the meaning of the covenant sought 'to be enforced and are absolutely dispositive of this phase of the case. It is pertinent to add that the doctrine already alluded to, which requires ixx cases of this kind that there must be no ambiguity or uncertainty in the covenant, is invocable and destructive of the claixxx set xxp by the complainants.

The evidence sxxbxnitted that the covenant in the deeds of oxxe or more purchasers of lots interdicted public garages and that the Metuchen Building Company refused to sell two of the defendant’s lots to prior applicants unless they were restricted as to pxxblic garages, tending to support the complainants’ coxxtention that the company’s policy was to limit the use of its lots to residential purposes, and which I have already pointed out is not within the scope of the bill, is in the view I have taken of the case, wholly immaterial.

The bill will be dismissed, with costs.


text:
    Walter Rosenberg v. Thomas V. Arrowsmith et al.
    [Submitted January 21st, 1914.
    Decided January 21st, 1914.]
    1. Where complainant illegally maintained a moving picture show on Sunday, he was not entitled to an injunction restraining the police authorities in closing his show from reading a proclamation against riots to complainant’s audiences on the ground that there was no riot, since in the enforcement of the law the fact that the police, without warning, employed an inappropriate measure merely incidental to a lawful act did not cause harm to complainant which could be the subject of an injunction.
    2. The operation of a moving picture show on Sunday is a “worldly employment or business” in violation of 1¡. Comp. Stat. 1910 p. 5712, prohibiting worldly employment or business, interludes, and plays, fiddling or other music for the sake of merriment on Sunday.
    3. Where the operation of a moving picture show was prohibited by 4 Comp. Stat. 1910 p. 5712, the fact that the proceeds of a certain performance were donated to charity did not make the operation of the show a work of necessity or charity within the exception of the law.
    On motion fox pxeliminary injunction.

      Mr. Thomas P. Fay, fox the motion.
   Backus, Y. C.

The complainant is the pxopxietox of the Bxoadway Theatxe at Long Bianch, in which he has in the past and desires in the future to exhibit moving pictures on Sundays.

The defendants, the police authorities at Long Branch, have interfered with .the Sunday night performances by entering the premises, reading the Riot act and removing the audience.

The prayer of the bill is that the defendants

“may be’’'restrained from further molesting and interfering with your orator under pretense of enforcing the act to prevent riots, routs, and tumultuous assemblies, and from reading any proclamation under said act in the theatre of your orator, and taking possession of the theatre of your orator and stationing policemen at the doors of your orator’s theatre under the pretense that there was a riot, rout, or tumultuous assembly.”

Upon this application for a preliminary injunction, the complainant asks only that the police be restrained from reading a proclamation against riots “to the complainant’s audiences, upon the theory that although' the authorities may lawfully close the complainant’s theatre on Sunday, they have not the right—there being no riots—to, in the discharge of their admitted duty, read an impertinent proclamation. The statement carries with it its refutation. If, in the enforcement of the law, the police, without warrant in fact, employ an inappropriate measure which is merely incidental to a lawful act, no harm is done to the complainant, of which he can complain.

Worldly employment or business, interludes and plays, fiddling or other music for the sake of merriment on Sunday, are forbid den. by our Vice and Immorality act (Comp. 8 tat. p. 5712), and one who maintains a place in which the law is thus habitually violated, is guilty of keeping a disorderly house. State v. Diamant, 73 N. J. Law (44 Vr.) 131; State v. Martin, 77 N. J. Law (48 Vr.) 652. Conducting a moving picture show is undoubtedly “worldly employment or business,” interdicted by the statute. A moving picture show perhaps may come within tile definition of interludes and plays, but this need not be decided. A moving picture show, and the accompanying music, are inhibited by the act. The act excepts “works of necessity and charity from its operation.” The complainant claims to come within this exemption, because, as he alleges, the proceeds of a certain performance are to be donated by him to charity, and asks that as to this particular exhibition an injunction issue against police interference. The difficulty with this position .is that the statute permits works of charity and does not exempt prohibited acts merely because the proceeds or results may be devoted to charity. If the meaning of the statute were as the complainant contends, then any licensed saloon keeper could defy the Sunday selling law by offering to give the proceeds of his sales to the poor.

Leave was granted to the complainant to renew his application, and he now cites the case note to Delaney v. Flood (N. Y.), in 2 L. R. A. (N. S.) 678. The opinion and the argument in the note do not advance his plaint. The attitude of the complainant, and the rights which- he seeks to vindicate here, cannot be looked upon with favor by a court of equity1. To grant him the relief he asks would assist him in carrying on an unlawful business. High Inj. § 9.

The writ is refused.


text:
    Bernhard Meyer et al. v. The Somerville Water Company et al.
    r Submitted November 20th, 1913.
    Decided January 22d, 1914.]
    1. In absence of a declared intention, or acts indicating such intention, the law will presume that defendant intends to adopt a lawful course of conduct, and intends no invasion of complainants’ rights, so as to make injunctive relief appropriate.
    2. If defendant asserts that he does not intend to infringe a certain right, and there is no evidence of such intention by him, the court will not interfere by injunction; but the court is not bound to accept defendant’s denial of a wrongful intention, unless the evidence shows that such denial is true, provided defendant has not previously. offended.
    3. To authorize either an interlocutory or final injunction, the court must be reasonably satisfied that defendant actually intends to do the act sought to be enjoined, or that there is probable ground for believing that the act will be done, and, in absence of such intention, the mere fact that the injunction will do no harm is not ground for granting it; but an injunction will not issue merely to allay plaintiff’s apprehensions, if there is no reasonable ground for believing that defendant is about to commit wrongful acts.
    4. Since the service of written notice upon water companies warning them not to extend their pipe line so as to interfere with complainants’ riparian rights would negative any-possible future charge of laches or acquiescence by complainants on application to condemn their property, an injunction will not be granted against the water companies for that purpose where they are at this time threatening no interference with complainants’ rights.
    5. A de facto municipality may give the consent required by P. L. 1876 p. 818, as amended by P. L. 1880 p. 278 (S Oomp. Btat. 1910 p. 3686 § 631), requiring the written consent of the municipality proposed to be supplied with water by a water company organized under the act to be filed with the secretary of state.
    0. Riparian owners whose water rights are not yet threatened by a water company cannot enjoin the water company from laying its mains, &c„ under a contract between it and several other water companies for furnishing water to a town, on the ground that the contract and the laying of the water mains through the town was ultra vires, since that does not concern complainants.

      7. A court of equity cannot enjoin a city from granting permission to a water cqmpany to lay a main on improved or state roads in the absence of a showing that complainants’ legal rights are threatened, even though such permission would be improper.
    On final hearing on pleadings and proofs.

      Mr. Edwa/rd P-. Johnson, Jr., and Messrs. Collins .<& Corbin, for the complainants.

      Mr. Clarence E. Case, Mr. Frederic J. Faullcs and Mr. John A. Freeh, for the defendants.
   Backes, Y. C.

The defendant Somerville Water Company is supplying water to Baritan and Somerville, and to residents along certain roads leading from these towns. The water is obtained from the Baritan river, at Baritan, of which the complainants are lower riparian owners. The average flow of the river during nine months of the year is about two hundred and fifty million gallons per day, and the low-water flow is sixty-one million gallons. At a point about three miles above the defendant’s works the river is dammed and the water diverted into the canal of the Baritan Water Power Company, which extends down to the defendant’s plant and supplies various factories with power. The capacity of the canal is equal to the ordinary flow of the river, which is eventually restored to the bed at and above the defendant’s pumping station. The defendant withdraws approximately two million gallons of water per day to supply Raritan and Somerville. On May 1st, 1907, a four-party contract was entered into by the Somerville AVater Company, Piscataway Water Company, Raritan Township AArater Company and Elizabethtown AVater Company, wherein it is recited, “AVhereas the said Somerville AVater Company is the owner of a large supply of pure and potable water, and is desirous of selling such waler to the extent hereinafter provided,” and whereby the defendant agreed to furnish and supply to the Piscataway company at a point (not fixed) in the boundary line between the township of Bridgewater and the township of Piscataway (boundary line between Somerset and Middlesex counties), pure and potable water, of a quantity to be regulated by the requirements of the Piscataway company, which requirements included the obligation imposed upon that company by the contract to in turn furnish water to the Raritan company, but which

“shall not at any time exceed such quantity of water as the said Somerville company may lawfully draw from its present or future sources of supply, less such quantity as the Somerville company may, from time to time, require to supply water to the said towns of Somerville and Raritan and the inhabitants thereof, and shall not at any time exceed twenty million (20,000,000) gallons a day.”

Subject to the above limitation, the Piscataway company agreed to deliver to the Raritan company not more than nineteen million gallons a day, and the Raritan company agreed to furnish to the Elizabethtown company not less than eighteen million gallons a day. Each company was, at its own cost,’ to lay mains within its territory for conveying the water, the delivery of which was to begin on the 1st day of January, 1909, and to continue for ninety-nine years. The four companies are owned or controlled by a single interest and managed by boards of interlocking directors. Avowedly, for the purpose of fulfilling its part of the contract, the defendant, in 1910, laid a thirty-six inch main from its pumping station, skirting Raritan, to Somerville, in all, about five thousand six hundred feet, when it was stopped by the authorities of that municipality. Somerville Water Co. v. Somerville, 78 N. J. Eq. (8 Buch.) 199. This main is now being used as an auxiliary to the defendant’s Somerville water system. Some of the other companies have laid complementary mains, as required of them by the contract. The defendant obtained from the board of freeholders of Somerset county permission to lay its main in an improved or state road, to a point near Bound Brook, and there was pending before that body at the time the bill was filed, an application to extend this permission from thence to the county line. On March 14.th and 16th, 1911-(the bill was filed March 23d), the complainants gave notice, in writing, to the defendant of their rights as riparian owners, and cautioned it against taking or diverting any of the waters of the river above their property, other than was necessary and proper for the use of Earitan and Somerville, and not to enlarge its pipes or plant or to do' or cause or permit to be done any acts or work looking to such taking or diversion. The defendant, in its answer and by its officers and other witnesses at the hearing) and through its counsel, in argument, concedes the complainants’ usufructuary rights in the waters of the river, as asserted by thorn in their bill, and protests that it never had claimed or now claims to have any right therein (except for supplying Somerville and Earitan), or that it has any purpose or ever had any purpose of taking any of the waters to fulfill the four-party contract, without first acquiring, as against the complainants, a right so to do either by purchase or condemnation. Upon this state of facts, and because of alleged non-existence of corporate powers in the defendant, lo which I shall presently allude, the complainants claim that they are entitled to the protection of this court against an invasion of their riparian rights by the defendant, and ask that such invasion and the further laying of the thirty-six inch main or the laying of any mains in Somerville or Earitan, disproportionate to the needs of these towns for thirty years to come, be perpetually restrained; and in their brief insist upon the removal of the mains already laid to insure absolute security.

The evidence does not show that the defendant’s acts threatened an imperihnent of the complainants’ property, or that the complainants were reasonably apprehensive that they would. Tlie enormous outlay of money by the four companies in constructing the thirty-six inch main, before first acquiring a water-supply or right thereto from the lower riparian owners and from the state through the water-supply commission (Comp. Siat. 5798), was at their hazard. It may have been an unwise and possibly a reckless venture, but it was undertaken, in subordination to the terms of the contract, which expressly stipulated that the water which the defendant agreed 'to sell to its co-contractors,, was to be only such as could be lawfully taken from its present or future sources of supply, and of this the complainants had ample information. The lajdng of the main, considered in the light of the contract, spelled a lawful enterprise and far from indicated an intent to •wrongfully invade the complainants’ rights. There was at the time of the filing of the bill no obscurity concerning these rights. They had been clearly defined and established by this court and the court of errors and appeals in Paterson v. East Jersey Water Co., 74 N. J. Eq. (4 Buch.) 49; 77 N. J. Eq. (7 Buch.) 588; Wilson, Attorney-General, v. East Jersey Water Co., 78 N. J. Eq. (8 Buch.) 329. This, and the notices given by the complainants to the defendant of their property in the river, and the implied forewarning that they purposed to protect it against intrusion, evinces that both parties were keenly sensed of the other’s legal rights, and it is to be assumed that the defendant meant to respect those of the complainants. There is no evidence of an expressed threat by the defendant, and the record is silent as to what response, if any, it made to the written notifications. No declaration of its intention was sought by the complainants before coming into court. In this situation the law presumes a policy of lawful conduct on the part of the defendant toward the complainants and coupled with the defendant’s unqualified disavowal and disclaimer of any rights in the water of the river, other than for supplying Ba ritan and Somerville; its emphatic and unequivocal denial of any intent, past, present or in the future, to take these waters without lawful right first acquired from the complainants by purchase or against them by condemnation, manifestly renders interference by injunction inappropriate at this time. The denials and disclaimers were made by the president, treasurer and a director of the defendant —gentlemen of high standing, good repute . and unimpeached integrity. Where a. defendant asserts positively that it is not his‘intention to do a certain act or to infringe a certain right, and there is no evidence to show any intention on his part to do the act or infringe the right, the court will not interfere. Kerr Inj. *13; Whalen v. Dalashmutt, 59 Md. 250. The court is not obliged to accept the denial of the defendant. Fleckensiein v. Fleckensiein, 53 Atl. Rep. 1043. But it ought to, when the evidence satisfies, as it does in this case, that the denials speak the truth. Of course, if a defendant has once offended, the rule does not. obtain. Beach v. Sterling Iron and Zinc Co., 54 N. J. Eq. (9 Dick.) 65. To justify the court in granting the, relief, it must be reasonably satisfied that there is an actual intention on the part of defendant to do the act which it is sought to enjoin, or that there is probable ground for believing that, unless the relief is granted, the act will be done. And it is not a sufficient ground for interfering that, if there be no such intention on the part of defendant, the injunction can do no harm. Nor will the court interfere when the evidence shows that there is no probability of defendant doing the act which it is sought to restrain. So 1 lie relief will not be granted unless the injury to the plaintiff is threatened or imminent or is in all probability about to be inflicted, and the writ will not issue merely to allay the fears or apprehension of the plaintiff where there is no showing or reasonable ground for believing that the defendant is about to commit the wrongs complained of or where it appears that he is without the opportunity or intention of so doing. High Inj. (4th ed.) § 22.

The complainants’ argument in justification of its course in resorting to this court at this time, is that it was necessary so as to prevent an adverse use ripening into a vested right; to preserve their legal status, so as to resist condemnation proceedings, and to avoid a future charge of acquiescence which might load to compelling them to give up their water rights for such compensation as the court might fix, as was done in Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385, and in New York City v. Pine, 185 U. S. 93. The last reason only need be considered. The defendant was not persuaded by any inducements held out by the complainants to make the expenditures for the laying of the thirty-six inch main. This was done entirely at the defendant’s risk. The complainants were vigilant in protesting, and it is inconceivable how, under these circumstances, they could be charged with acquiescence. The serving of the written notices raised an effectual bar against a claim of laches, and they could safely have, and should have, waited until the defendant threatened a trespass upon their interests. Paterson v. East Jersey Water Co., supra. Inquiry might have brought further assurance.

It is claimed that the defendant has not the power of condemnation. The defendant was incorporated on, and has been operating since, June. 15th, 1881, under the provisions of the act of April 21st, 1876 (Comp. Stat. p. 3635), -which, as it stood amended at that time (P. L. 1880 p. 273), authorized the formation of water companies for the purpose of constructing water works

“in any city, town, village or seaside resort in this state, having a population of not more than fifteen thousand and not less than five hundred inhabitants, and for the purpose of supplying' * * * the inhabitants thereof with water.”

The defendant’s certificate of incorporation states that its purpose is to construct, maintain and operate water works in the town of Somerville and also in the adjoining town of Raritan for the purpose of supplying both towns and the inhabitants thereof with water. The restrictive language of the act raises 'a very grave doubt as to whether one company may be formed to operate water works in two or more of the class of towns (Somerville Water Co. v. Somerville, supra), and consequently as to the right to condemn. Hampton v. Clinton, 65 N. J. Law (36 Vr.) 158; Manda v. Orange, 75 N. J. Law (46 Vr.) 251; Sisters of Charity v. Morris Railroad Co., 82 N. J. Law (53 Vr.) 214 In this connection the constitutionality of the acts under which Somerville and Raritan were formed (P. L. 1863 p. p479; P. L. 1868 p. 776) is assailed to furnish grounds for the contention that Bridgewater township, in which the towns are located, was the municipality to give the consent required by section 2 of. the act under which the defendant was incorporated. The point was feebly asserted on the argument, and if it has merit, it cannot avail the complainants because, as I apprehend, a de facto municipality may give the consent. Lang v. Bayonne, 74 N. J. Law (45 Vr.) 455. It was also urged that the defendant had not procured from the state water-supply commission approval of its plans for any new or additional source of water-suppty to meet the requirements of the four-party contract. Comp. Stat. p. 5798. None of.these grounds of attack upon the defendant’s right of eminent domain affected the defendant’s right, as against the complainants, to enter into the four-party contract or to lay the thirty-six inch main, and they afford the complainants no substantive cause for complaint. The only bearing they now have is upon the integrity and good faith of the defendant’s denial of intent to intrude upon the complainants’ water rights, and as to this, it may be suggested that at the time the contract was made, and the main laid by the defendant, its lack of power to condemn was a mooted question which was then, it is said, not called to its attention. The point was raised afterwards in the Somerville Gase. Moreover (the defendant’s right to supply Somerville and Earitan from its present source, being admitted), the municipalities which the four-party contract is intended to serve with water, may have the right to condemn. Slingerland v. Newark, 54 N. J. Law (25 Vr.) 62; Paterson v. Kearny, 87 Atl. Rep. 103. And this power, it is claimed, is possessed by the co-contractors. Paterson v. West Orange Water Co., 87 Atl. Rep. 104. See, also, Paterson v. East Jersey Water Co., supra (at p. 108). .The defendant has also in contemplation plans for the storage of freshet waters gathered from tributaries of the Earitan, to be let down the river during dry spells, to compensate for whatever may be withdrawn or to be conveyed by pipes, gravitationally, to its pumping station. Under either method, condemnation of the complainants’ water rights, of course, would be necessary. Sparks Manufacturing Co. v. Newton, 57 N. J. Eq. (12 Dick.) 367. But the scheme appears to be so extravagant that it may be dismissed as only a very remote possibility.

It is also argued that the defendant not having a legal corporate existence, due to the defects mentioned, the four-party contract and the laying of the thirty-six inch main through Somerville, of a size greatly in excess of the present or far-future needs of that town (Bayonne v. North Arlington, 78 N. J. Eq. (8 Buch.) 283), are 'ultra vires the defendant, and that the latter should be restrained and abated and the extending of the main to the Somerset, county line should be enjoined. The contract was authorized by act of April' 8th, 1903. P. L. 1903 p. 287; Comp. Stat. p. 8611. This phase of the case may be disposed of by the observation that the complainants are not injured thereby, nor are they therein concerned.

It is further insisted that the defendant has not the right to supply water to dwellers along roads leading out of Raritan and Somerville, as provided by the act of March 23 d, 1883. P. L. 1883 p. 201; Comp. Stat. p. 8611. An examination of the bill shows that this was not made an issue in the cause.

Throughout, the Somerville Water Company has been referred to as the defendant. The Board of Freeholders of Somerset county was joined as a defendant, ’ with a prayer that it be restrained from granting permission to the Somerville Water Company to lay the thirty-six inch main on the improved or state roads. The board hied a demurrer. The propriety and legality of granting this permission must be threshed out in the law courts. This court cannot interfere. Van der Plaat v. Undertakers’ Association, 70 N. J. Eq. (4 Robb.) 116. The demurrer will be sustained.

The bill will be dismissed, with costs.


author: Baokes, V. C.

text:
    Frederick A. Cooper v. Charlotte S. Cooper.
    [Decided May 24th, 1913.]
    Evidence held insufficient in a suit for divorce on the ground of adultery, brought by a husband against his wife.

      Mr. Traverse A. Spraggins, for the petitioner.

      Mr. Wilfred B. Wolcott, for the defendant.
   Baokes, V. C.

Cooper, the petitioner, charges his wife with adultery, naming one Bumstead as co-respondent. Her conduct with the corespondent, as she admits, was highly indiscreet and -venturesome, if not reckless. To some extent she was led in her indiscretion by an older female companion. The defendant admits the circumstances from which it is claimed guilt should be inferred, but she and the co-respondent emphatically deny the commission of crime. A denial by the defendant and corespondent is, as a rule, entitled to very little weight, but I watched and carefully observed the defendant while testifying. She was absolutely frank in relating her conduct and in confessing her imprudence. Her deportment on the stand was simple and modest, and her testimony was given in a straightforward and impressive manner, especially in the denial of her guilt. She impressed me as a truth teller. She unhesitatingly admitted suspicious circumstances which she could as well have suppressed without fear of contradiction.

She told and confessed all that could be used to build a story around her from which guilt might be deduced, even relating to matters which had not been brought out on the petitioner’s case. She struck me as one who appreciated to its fullest the moral obligation of her oath. The indicia of honesty was written all over her story. I think her denial is entitled to serious consideration.

The testimony did not satisfy my mind that she went so far as to submit her body to the co-respondent. While the appearances are against her, and the fact that she entertained him at her home, went out with him to public places, visited him at his office, and that he upon two occasions kissed her, may arouse suspicion that all was not right between the two, I am not convinced that she took the fatal step, that she broke her marriage vow, that she committed adultery. In fact, I believe she did not.

There is no testimony indicating that she was amorously in- ' dined toward the co-respondent and disposed to commit the crime charged against her. While the two had many opportunities to gratify a lustful desire, yet there is no evidence manifesting that the defendant had such desires towards Bumstead, the co-respondent. There is no evidence of lust or of lewdness on the part of the defendant. She is not shown to be depraved. She was a flirt and a fool, but not a criminal.

There is testimony that she is chaste of speech and well-behaved. Even her bitter enemy, Mrs. Flower, testified that she was a good woman at the time of her marriage, and it is difficult to believe that she changed her moral code within so short a time as two and a half years thereafter.

I cannot, in the circumstances, although they quicken suspicion, denounce this young wife, the mother of two babies, as an adulteress. I will advise a decree dismissing this petition.


author: jBackes, Vice-Ordinary.

text:
    In the matter of the estate of Sara E. R. Queen, deceased.
    [Submitted December 4th, 1913.
    Decided December 18th, 1913.]
    1. The orphans and surrogate courts being independent judicial tribunals, the orphans court has no jurisdiction to revoke letters of administration granted by the surrogate except on appeal.
    2. An order of a surrogate granting letters testamentary or of administration is a proceeding in rem, resulting in a judgment which may not be impeached collaterally, but can only be attacked on appeal.
    3. Where an orphans court refused to admit a paper-writing to probate as decedent’s testament, but did not adjudge that she died intestate, it did not acquire jurisdiction of her estate, and hence the fact that the surrogate thereafter granted letters of administration was not objectionable as an exercise by him of the jurisdiction of the orphans court.

      • 4. Where intestacy exists, a right to appoint an administrator rests in the surrogate unless because of dispute it is referred by him to the orphans court as provided by Orphans Court act. 8 Comp. Stat. 1910 p. 882%.

    5. On appeal from a decree of the orphans court, the prerogative court will not amend the decree under review so that it would be vulnerable on appeal.
    G. Where probate of an alleged will was denied by the orphans court and letters of administration were granted by the surrogate, one having no interest in that will had no interest in the decree denying probate and no standing to ask that such decree be vacated as a necessary step to his attack on letters of administration for want of jurisdiction.

      7. A rule that an averment of the petition to vacate a decree denying probate of an alleged will and an order granting letters of administration, that the letters were issued pursuant to the decree of the orphans court denying probate, must be taken as true, does not apply where the averment is contrary to facts of which the court takes judicial notice.
    On appeal from the orphans court of Hunterdon count)".

      Mr. Adam 0. Robbins and Mr. Walter L. Sheppard (of the Philadelphia bar), for the appellant.

      Messrs. Queen & Stout, for the respondent.
   jBackes, Vice-Ordinary.

This is an appeal from an order of the orphans court of Hunterdon count)", dismissing a petition to vacate a decree denying probate of a paper-writing purporting to be the last will and testament of Sara E. It. Queen, deceased, and to set aside letters of administration upon her estate, granted by the surrogate of that county.

The deceased died in Media, Pennsylvania, leaving personal property only. Sylvanus R. Queen, her husband, survived. A paper-writing purporting to be her last will, by which she -attempted to bequeath her entire estate to her husband, was offered for probate before the surrogate, who, because of doubts arising upon the face of it, certified the same into the orphans court for adjudication. On the hearing lief ore the orphans court it was made to appear that the decedent’s residence at the time of her death was at Mount Pleasant, in 'Hunterdon county, and it appearing that the purported will was not executed as required by our statute concerning wills, the court decreed "that the said paper-writing or instrument offered for probate is not 'established as the true last will and testament of the said Sara E. R. Queen, deceased, and that probate thereof is hereby denied, and that the said will is null and of no effect.” After the entry of the decree, and on" the same clay, the husband presented a second petition to the surrogate praying that letters of administration be granted to him, and accordingly an order was made by the surrogate appointing him as such administrator. The present appellant, William G. Alexander, Jr., later petitioned the orphans court to set aside its decree denying probate, and also the grant of administration. In his petition he set up that the deceased at the time of her death was a resident of the State of Pennsylvania; that she executed a testamentary writing, in which he was a beneficiary, provable under the laws of Pennsylvania, but not executed as wills are required to be by the laws of this state (this is not the same paper-writing which was offered for probate); that he had knowledge of the probate proceedings, but was induced to acquiesce therein and to make no objection thereto because of a promise made to him by Sylvanus R. Queen that the wishes of the decedent regarding the disposition of her estate would be prom'ptly carried out by him; that this promise has not been redeemed.

Without hearing the merits, the orphans court, upon motion, made an order dismissing the petition on the ground that it was without jurisdiction to revoke letters granted by the surrogate, the order reciting that "the petitioner having admitted in open court that this was the object of the.prayer of the said petition.” From- this order this appeal was taken.

That the orphans court and the surrogate’s court are independent judicial tribunals, and that the orphans court has not jurisdiction to revoke letters of administration granted by the surrogate, except in the manner prescribed by statute, upon appeal, is settled by numerous authorities. Quidort’s Administrator v. Pergcaux, 18 N. J. Eq. (3 C. E. Gr.) 472; Ryno’s Executor v. Ryno’s Administrator, 27 N. J. Eq. (12 C. E. Gr.) 522; In re Evans, 29 N. J. Eq. (2 Stew.) 571; Straub’s Case, 49 N. J. Eq. (4 Dick.) 264; affirmed, 50 N. J. Eq. (5 Dick.) 795; Murray v. Lynch, 64 N. J. Eq. (19 Dick.) 290; affirmed, 65 N. J. Eq. (20 Dick.) 399. A grant of letters testamentary (or •of administration) by a surrogate is a proceeding in rem, resulting in a judgment which may not be impeached collaterally, and can only be attacked by appeal. Quidort’s Administrator v. Pergeaux, supra.

The contention is that the letters of administration were issued out of tire orphans court by the surrogate, as its clerk, pursuant to the order denying probate, and that inasmuch as the decedent was not a resident of this state, the court was without jurisdiction, and having been imposed upon by false testimony in this respect, it should vacate its decree denying probate, and revoke the letters of administration. The decree denying probate is silent as to the grant of administration. The surrogate, in his judicial capacity, made the order upon which the letters issued. It is claimed that this order is a nullity; that the decree of the orphans court was an adjudication of the existence of the New Jersey residence of the testatrix; that tire orphans court declared an intestacjr and acquired absolute jurisdiction to administer the estate; that an order appointing the administrator is implied in the decree and that this court, on appeal, should amend it to include the appointment; the argument being that the surrogate, as a court, was stripped of all authority when he certified the matter of probate into the orphans court and that all subsequent acts by him, although in his name as surrogate, were done as the cleric of the orphans court. And these things we are asked to import into the decree, so as to situate the appellant that he may by indirection do that which by direction is impossible—destroy the administrator. The proposition has neither premise or logic nor merit. The orphans court, in refusing to admit to probate the paper-writing as the testament of the deceased, did not adjudge that she died intestate, nor did it thereby acquire jurisdiction of her estate. All that the court was called upon to decide (jurisdiction being assumed) was whether the paper-writing offered was the last will and testament of Sara E. R. Queen, deceased, and upon rejecting it as such, its office terminated. If, thereafter, another will, regular in form, concerning which there was no dispute, had been submitted for probate, it would have been tire duty of the surrogate to pass judgment. Murray v. Lynch, supra. Undoubtedly, when a disputed will is probated, the orphans court is clothed with power to appoint a representative to execute the trust. In re Jolly, 5 N. J. Eq. (1 Halst.) 456; Mundy, v. Mundy, 15 N. J. Eq. (2 McCart.) 290; In re McElwaine, 18 N. J. Eq. (3 C. E. Gr.) 499; Slocum v. Grandin, 38 N. J. Eq. (11 Stew.) 485; In re Booraem, 55 N. J. Eq. (10 Dick.) 759. But when there is no probate there can be no trust, and there being an intestacj'' the right to appoint an administrator rests in the surrogate unless, because of dispute, it is referred by him to the orphans court, as required by the statute. Orphans Court act (3 Comp. Stat. p. 3822); Plume v. Howard Savings Institution, 46 N. J. Law (17 Vr.) 211. The principle of Russell's Case, 64 N. J. Eq. (19 Dick.) SIS, is illustrative. The situation when the orphans court declined probate, in so far as any other will or the estate of the deceased was concerned, was as if the proceedings were not had.

The proposition that an appellate court 'will amend the decree under review so that it may be vulnerable on appeal, is anomalous. Furman v. Furman, 45 N. J. Eq. (18 Stew.) 744; 47 N. J. Eq. (2 Dick.) 307, is cited. The power of amendment conferred by section 195 of the Orphans Court act (Gomp. Stat. p. 8884) was under consideration and a recital from the deliverance of Vice-Ordinary Van Fleet, read in conjunction with the opinion of the court of errors and appeals, at once points out the inapplicability of the doctrine thus laid down. Vice-Ordinary A7an Fleet said: “The counsel of the respondent insists that this court should, in virtue of the power conferred by this statute, make the ascertainment which the orphans court ought to have made, and then amend the order brought up, and after it has thus been made perfect, pronounce a judgment of affirmance. To adopt this course would, I think, be putting the statute to a use never contemplated by the legislature.” Mr. Justice Dixon, reading the opinion of the court of errors and appeals, said: “It is the rule and practice in all our appellate tribunals when the judgment, order or decree appealed from is erroneous, and the record legally discloses what judgment, order or’decree should have been rendered, to direct such judgment, order or decree to be entered, according to the right and justice of the case.”'

It is further urged that if it should be held that the grant of letters of administration by the surrogate was the act of his own court, nevertheless the appellant is entitled to have the decree voided, as a necessary step in his attack upon the invalid grant of letters. This I cannot accept. Whether the adjudgment of jurisdiction was erroneous or imposed by fraud, is now of no moment. The appellant was not aggrieved by the rejection of the paper-writing. He was not interested,-and consequently had no standing to ask the orphans court to vacate its decree for want of jurisdiction.

The technical point was made that the averment in the petition, that the letters of administration “were issued pursuant to the decree of the orphans court denying probate,” must be taken as true on a motion to dismiss. This, undoubtedly, is the general rule, but it has no application to instances were the averment runs counter to facts of which the court takes judicial notice. Dan. Ch. Pr. 546. Courts, of course, take notice of their own dies.

The appeal will be dismissed, with costs.


author: Back.es, Vice-Ordinary.

text:
    In the matter of the estate of Sara E. R. Queen, deceased.
    [Argued January 13th, 1914.
    Decided January 15th, 1914.]
    1. On an appeal to this court taken from an order of the orphans court dismissing a petition to vacate a decree denying probate of a purported will, and to set aside letters of administration granted by the surrogate of the county to entertain the subject-matter, because, as was alleged, the decedent wms a non-resident, the jurisdiction exercised by this court is strictly appellate, and this court is without authority to impose upon the defeated suitor counsel fees as part of the costs and expenses, unless authorized by statute or the settled practice of the court.
    2. There is no such statute or settled practice permitting it in this court.

      3. The costs which the prevailing party, on an appeal of this kind, is entitled to are those specifically provided for in the fee bill, and are not to be increased or diminished at the discretion of the court.
    4. The one hundred and ninety-sixth section of the Orphans Court act (Comp. Btat. p. 8884), providing that "in all litigated suits in the orphans court the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party,” is not available on this application.
    5. The proceeding in the orphans court appealed from was a “litigated suit” within the meaning of the statute, and counsel should have applied to that court to exercise its discretion in that behalf.
    On motion for an allowance of counsel fee.

      Messrs. Queen & Stout, for the motion.

      Mr. Adam 0. Robbins, contra.

   Back.es, Vice-Ordinary.

The appeal in this case was dismissed, with costs, against the appellant. The respondent now moves for a counsel fee, and relies upon section 196 of the Orphans Court act (Comp. Stat. p. 3884), which reads:

“In all litigated suits in the orphans court the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party.”

and cites in support of his motion the case of Bioren v. Nesler, 76 N. J. Eq. (6 Buch.) 576, and Kayhart v. Whitehead, 77 N. J. Eq. (7 Buch.) 12

Bioren v. Nesler came into this court on an appeal from a decree refusing probate of an alleged will, and the present chancellor vindicated the power of this court, based upon an established practice sanctioned by the court of errors and appeals, to make allowance to counsel for services on appeals in matters relating to the probate of wills, to be paid out of the estate, and, obviously, because “the jurisdiction of the prerogative court in relation to the probate of wills is an original jurisdiction and not merely appellate, and upon filing of such appeal against the decree of the orphans court admitting to probate a disputed writing, the question for decision in the prerogative court is, not the propriety of the decree below, but the right to the probate of the will. The question of the probate comes up de novo and may be heard in the prerogative court on the same evidence as below or on additional evidence.” Kayhart v. Whitehead, supra.

The practice in such cases has not its origin in legislation. Whitenack v. Stryker (A. D. 1838), 2 N. J. Eq. (1 Gr.) 8, although it is saarctioned by statute. P. L. 1855 p. 342; Rev. 1874 p. 550; Comp. Stat. p. 3885. Where the services of counsel are for the advantage of all concerned, it is the common practice to compensate him out of the funds of the estate. On appeal from a decree upon exceptions to executor’s account. Munn v. Munn, 20 N. J. Eq. (5 C. E. Gr.) 472. On appeal from an order of distribution. Smith v. McDonald, 69 N. J. Eq. (3 Robb.) 765; 71 N. J. Eq. (1 Buch.) 261. By virtue of section 197 of the Orphans Court act (Comp. Stat. p. 3885) the court may, in litigation of this kind only, order the losing party to pay a counsel fee.

The appeal in this case was taken from an order of the orphans court dismissing a petition to vacate a decree denying probate of a purported will, and to set aside letters of administration granted by the surrogate of the county on the ground that the orphans court was without jurisdiction to entertain the subject-matter, because, as it was alleged, the decedent was a non-resident. The proceedings were solely to review the propriety of the dismissing order. The jurisdiction was strictly appellate. The appeal did not concern the funds of the estate. On such a review, this court is without authority to impose upon the defeated suitor counsel fees as part of the costs and expenses, unless authorized by statute or the settled practice of the court. There is no statute which permits it. Such practice does not obtain in our court of errors and appeals, nor does it exist here. The costs Avliich the prevailing party, on an appeal of this kind, is entitled to, are only those specifically provided for in the fee bill, and are not to be increased or diminished at the discretion of the court. Apperson v. Mutual Benefit Life Insurance Co., 38 N. J. Law (9 Vr.) 388. Costs, generally, are regulated by the Fees and Costs act (Comp. Stat. p. 2277), which prevails, except where substituted, supplemented or superseded by kindred enactments, as for instance, the Fees and Costs act at law (Comp. Stat. p. 4189), the Fees and Costs act in chancery (Comp. Stat. p. 445), those provided by tire Orphans Court act (Comp. Stat. p. 3-886), and the like. It required an act of the legislature to empower the court of chancery to award counsel fees to a successful complainant (P. L. 1902 p. 540), and another to permit that court to grant such allowance to a successful defendant. P. L. 1910 p. 427.

The statute above quoted is not available on this motion. It enables the orphans court in litigated actions to award counsel fees as part of the expenses of the litigation, but it does not confer that power upon this court. A refusal of the orphans court to make an allowance of counsel fee would be subject to appeal, but the record does not disclose that the matter ivas pre- ■ sented to the court below, and even if it were, its action was not brought up for review.

The proceeding in the. orphans court was a “litigated suit” within the meaning of the statute, and counsel should have applied, and perhaps may now apply to that court, to exercise its discretion.

The motion will be denied.