author: Reed, Y. C.

text:
    Martha Carr et al. v. Isaac Hertz et al.
    1. The implied power of one partner to mortgage firm property is revoked hy a dissent of his copartners known to the mortgagee when he takes his mortgage.
    2. One of two executors, to whom property is left in trust to carry on a partnership business, cannot, without the assent of his co-executor, execute a series of mortgages upon all the trust property for the purpose of finally distributing the same among certain firm creditors.
    3. It seems that one partner of a firm, not engaged in the business of dealing in real estate, cannot execute a mortgage upon the firm real estate unless such power is expressly conferred upon him or the title is vested in him.
    The bill is filed by two partners to annul a series of mortgages made by a third person, as partner, upon all the firm property, to certain of the firm creditors.

      All these partners were executors or executrices of deceased persons who had, by will, left that part of their estate theretofore invested in the business, still in the business, with power to their personal representatives to continue the said business.
    To understand the questions raised, it is essential that the evolution of the partnership which existed at the date of the execution of these mortgages should be exhibited in detail, as well as the transactions which preceded and attended the making of these instruments.
    In 1883 there was a firm, in the city of Newark, carrying on the business .of tanners and dealers in leather. The firm was composed of Joseph W. Carr, John W. Carr and Louis M. Smith. Joseph W. Carr died in 1884. By his will, he gave to his wife the use of'all his estate during her widowhood, with remainder over to her children. The will contained the following provision:
    “ My desire is that the interest which I now have as partner in the leather business, conducted in the said city by the firm of Smith & Carr, shall remain undisturbed, and that my widow shall, at the expense of my estate, employ some person, who shall be acceptable to the surviving members of the said firm, to represent her.”
    Martha Carr, the widow, was appointed sole executrix.
    She having drawn so much of her husband’s interest as was in excess of that of the other partners, left the balance of the estate which had been invested in the busines still in the business. The business was thereafter conducted by'her and the surviving partners until February 19th, 1886. At that time the interest of Louis M. Smith was bought out by John W. Carr and the executrix. Thereafter the business was continued in the firm name of John W. Carr & Company; or, as indicated on some of the bill-heads, “ John W. Carr & M. Carr.” John W. Carr was the managing member of the partnership. One Charles Wenzel was in his employ, and upon John W. Carr’s absence in California, by reason of his sickness, Wenzel was given a power of attorney to transact the business and sign the firm name. John W. Carr died, leaving a will dated December 5th, 1887, in which will he gave his wife a certain portion of his property; and then gave the residue of his estate, real and personal, to his executors and the survivors of them in trust for the following purposes: “To continue the business of the firm during the lifetime of his wife if it should be found profitable and his executors should deem it best to do so.” He authorized his executors to enter into any arrangement or agreement, as they saw fit, to continue and carry on the said business, with or without the present partner, and to use the residue of the estate as they might see fit, and to manage and conduct the business for his said interest therein, in all respects according to their judgment, until the death of his wife, or until such time in her lifetime as the said executors should see fit to discontinue the same. He empowered his executors to sell, in their discretion, any part of his real estate which was not embarked in the said business, and also the proceeds of such business upon the discontinuance thereof.
    In this will the testator’s wife, Caroline, and Charles Wenzel were appointed executors. Ho arrangement was entered into by the said executors with the partner Martha Carr in respect to the continuation of the business, nor was any agreement or understanding entered into between Caroline A. Carr and Charles Wenzel in respect to the carrying on of the firm business. The business, however, went on as usual. The two ladies were entirely unfamiliar with the practical operation of the business, and the business was continued on the same line and under the same management as it had been conducted prior to John W. Carr’s death, with the exception that checks and notes and evidences of indebtedness were required to be signed by Martha W. Carr; and although the bank seems to have recognized some signatures of the firm name made by Charles Wenzel, the agreement of the copartners was, that the firm name should be signed only by Martha W. Carr.
    After the probate of the will, Wenzel was urged to have an inventory of the estate of his testator made, which would have necessitated an investigation into the affairs of the partnership. This he, on one excuse or another, postponed from time to time, and it was, in fact, never made. On various occasions and to different persons he repeatedly remarked that he was not interested in the concern individually.
    According to Mr. Wenzel’s testimony, the firm had met with a loss previous to the death of John W. Carr, and some time in October, 1891, the attention of the two ladies was called to the fact that the estate was in an embarrassed condition. The two executrices called a meeting of the creditors of the firm on November 23d, 1891. At this meeting the authority of the executrices was practically turned over to the creditors. They were empowered to inspect and protect the firm property. The creditors appointed a committee, which committee went to the factory and were refused admittance by Mr. Wenzel. Subsequently, the committee gained access to the factory, made an inventory and appraisement of the personal property and put a keeper in charge and continued the work of tanning.
    On November 30fch, another meeting of creditors was held, at which the executrices, through their counsel, offered to turn over all the assets of the firm to two trustees, for the creditors, and hold the proceeds until all the creditors signed a certain paper, which allowed the widows to retain their homes. On the same day, the executrices executed an assignment of all the firm property to two trustees, to carry out this purpose, but said assignment did not become effective, because some of the creditors refused to accede to the condition.
    Charles Wenzel refused to take any part in the proposed action of the executrices, but, beginning on December 1st, he, between that date and December 13th, inclusive, made a series of mortgages, which practically exhausted the entire firm property.
    He made two mortgages on December 1st, to Isaac Hertz— one upon the hides in process of manufacture, to secure $775.49, the other upon all tools, fixtures, accounts receivable, two horses, carriages, wagons and harness, to secure the sum of $850.15.
    On December 2d he made a mortgage upon all the property covered by the second Hertz mortgage, as well as upon the six hundred and twenty-eight hides, to the Newark Bark Company, to secure the sum of $2,320.

      On December 3d lie made three concurrent mortgages upon the hides, accounts receivable, tools, fixtures, all their' business assets — one to Cornelius Fitzpatrick and John Doolan, to secure $1,118.70; another to Charles Smythe, to secure $3,337.63, and still another to secure Levi R. Barnard the sum of $1,277.15.
    On December 13th he made three real estate mortgages, covering all the interest of the firm-in certain designated property. One of these mortgages was -made to CorneliusFitzpatrick and John Doolan, to secure' $1,118.70; another to Charles Smythe, to secure the sum of $3,337.63, and one to Levi R. Barnard, to secure $1,277.15. These mortgages were concurrent.

      Mr. James E. Howell, for the complainants.

      Mr. Chandler W. Riher, for the defendants.-
   Reed, Y. C.

As already stated, this bill is filed by Caroline A. Carr, executrix of John W. Carr, and Martha Carr, executrix of Joseph W. Carr, attacking several mortgages made by Charles "Wenzel. The authority of Mr. Wenzel to execute those mortgages, if it existed at all, must- rest upon an implied authority residing in him as a partner. It is clear he did not become a partner in the business by any conventional arrangement between Caroline A. Carr and himself. His right to rank as a partner resulted entirely as an inference of law, from the fact that he had carried on, with the property of his testator, the business as a firm business. But inasmuch as his co-executor, while having no voice in the active transaction of the business, seems to have acquiesced in its continuance, the law would seem clearly to clothe Wenzel with the authority of a partner in the business. Assuming, therefore, that he possessed the power and authority of a partner, the question supervenes, did the implied authority with which a partner is invested authorize him to execute, under the circumstances of this case, the series of mortgages now attacked ?

It is entirely settled that a partner has the implied authority to sell any portion of the firm property. He possesses that power, although the sale may be made to pay an antecedent debt, and although the sale itself may lead to the insolvency of the firm. So may he pledge or mortgage a part or. all of the firm property for the purpose of raising funds to carry on the partnership business, or to pay some one or moré of the outstanding debts of the firm. All this power is conceded to a partner so long as his acts are bona fide. But in gauging the power of the partner, it is uniformly held that it is limited to such transactions as come within the scope of the partnership business. The moment an act of his, in dealing with partnership property, is to be ranged outside of the legitimate business of the partnership, his authority to bind the other partners of the firm ceases. So it is held, in numerous and weighty authorities, that the disposition by one partner, without the consent of his copartner, of all the property of the firm in the way of a general assignment for the benefit of creditors, is beyond the ability of any person as partner. The reason assigned for this limitation upon his power is that such an assignment is not an act done in the transaction of the business of the firm, but it is an act directly dissolving the partnership, closing its existence and finally distributing its property.

If the evidence was more convincing that this series of mortgages made by Mr. Wenzel were part of one scheme, by which these mortgagees and Wenzel concerted to tranfer in this method practically all the property of the firm to prefer the mortgagees as creditors, I should regard the question as directly involved, whether a general assignment for the benefit of creditors is within the power of one partner without the assent of his copartners; for it cannot be doubted that such a scheme is, in respect to this question of power, exactly equivalent to a general assignment. But I am not clear that at the time the first mortgage was made to Mr. Hertz, or at any other particular period between December 1st and December 13th, there was a general scheme in the minds of the parties to transfer all the property, by way of preference, to the creditors named. Therefore I am not willing to regard these mortgages as standing upon the same footing as would a general assignment for the benefit of creditors.

But it seems to me that the case presents another question, which is, whether the power of Wenzel, if it would otherwise have existed, was not in this instance limited by the known dissent of the other partners to his act.

It is entirely settled that while third persons dealing with the firm will not be affected by any limitation upon the authority of partners contained in the articles of copartnership, yet if a person dealing with one partner has notice of this limitation, he cannot hold the firm, if the partner’s act is violative of the limitation. 1 Lind. Part. 170.

And knowledge of restrictions upon the power of a partner may be established by circumstantial evidence as well as by direct proof of notice. 17 Encycl. L. 996.

It is especially well settled that in respect to those implied powers with which a partner is invested, if a party dealing with such partner receives notice of the dissent of his copartners from any act of such partner, the third party cannot hold the firm by reason of such act. The apparent implied authority is revoked by dissent coupled with the notice of dissent. 17 Encycl. L. 997; Gallway v. Mathew, 10 East 264; Willis v. Dyson, 1 Stark. 131; Monroe v. Conner, 15 Maine 178; Matthews v. Zollikoffer, 20 Md. 248; Knox v. Buffington et al., 50 Iowa 320; Wilcox v. Jackson, 7 Col. 521.

In most cases where the occasion for the application of this rule has arisen, either a direct notice of the dissent was given to the person dealing with the partner, or a general notice of which he had knowledge.

The question, however, is not in respect to the form of the notice, but whether there was notice, and circumstances may speak as forcibly as words. Wilcox v. Jackson, supra.

Now, in view of these well-settled rules, how do these mortgagees stand? It is in evidence that the two executrices, on November 23d, 1891, called a meeting of the firm creditors, at which meeting their intention was manifested to devote the property to the payment of all the firm creditors. This purpose still more clearly appeared by the transactions which occurred at and which followed the meeting of November 30th. At this meeting it was proposed to turn the property over to trustees, who were to take charge and sell the same and pay the creditors pro rata. There was, indeed, a condition annexed, that otherwise the homes of the executrices should be left intact; but that the intention, and sole intention, of those executrices was an equal distribution of the firm property among the creditors, is unmistakable.

Now, at this meeting of creditors all the mortgagees were present or represented. They all knew that, so far as the two executrices were concerned, they intended this disposition of the property and that they intended no other. Wenzel himself, of course, knew the intention of' the executrices. He knew that they had refused to make mortgages to other firm creditors. He himself asserts that, inasmuch as they chose to adopt their method, he concluded that he would adopt his. He knew that the trustees, representing the creditors, were in possession of the factory, and I have no doubt that the mortgagees knew the same.

Now, on the heels of the meeting of November 30th and the action of the trustees taking possession of the factory, these mortgagees hastened to Wenzel and, on the 1st, 2d and 3d of December, induced him to make the chattel mortgages. They knew — no reasonable person could have failed to know — that the two executrices were opposed to any action upon Wenzel’s part, and certainly of his execution of any mortgages.

Now, if it be true that these mortgagees, as well as Wenzel, had notice of the antagonism of the two executrices to the execution of any mortgage .to any of the creditors, the rule applies that the implied power which he may have had to dispose of the property by way of mortgage, was revoked by the circumstances just mentioned.

Again, it seems to me that there is another feature in this case which leads to the same result. It will be recalled that Mr. Wenzel was one of the two personal representatives of a deceased partner. These two represented a single interest in the' firm, the other interest being represented by Caroline A. Carr, the other executrix. Now, while one of two executors or administrators has the power to sell, in the course of administration, any of the property belonging to the estate, yet the property that these personal representatives held at the time of these mortgages was trust property. The will of John W. Carr impressed all the property that had been invested in this business with an express trust. It seems entirely clear that, in executing the discretionary power with which they were invested by the will in dealing with this property, they could only act jointly.

Thus, the power to continue the property in the partnership business if they should deem best to do so; the power to enter into some arrangement to carry on the business either with or without Caroline, the surviving partner; the power to sell the real estate upon the discontinuance of the business — all these powers were confided to joint trustees and required joint execution.

So far as respected the conduct of the business, Mr. "Wenzel was probably, by virtue of his legal character as partner, certainly, by the authority which was conferred upon him by the permission of the other partners, entitled to buy and sell and conduct all the current business of the partnership as any other partner. But when he attempted to dispose of all the property of the firm, and therefore all of his trust property, not as an act done in transacting the current business of the partnership, but after admitted insolvency, as a final disposition of all the property, it seems to me that the trust restriction upon his separate power comes into play.

Now, that he was no partner, save by virtue of his position as executor, was well known to all the creditors of the firm. They knew that on the winding up of the business, anything that might remain belonged to the two trust estates; that this trust estate was represented by two trustees, and yet, by the act of one against the dissent of another, they accepted these mortgages, which admittedly extinguished the trust property entirely.

For the reasons stated, I think that the whole series of mortgages should be declared void.

In respect to the real estate mortgages, they seem to be inefficacious to bind the firm property upon another ground.

As a general rule, one partner, without the assent of his copartners, cannot bind them by any act which requires a seal. Ellis v. Ellis et al., 18 Vr. 70. And as a mortgage requires a seal, or what in this state stands for a seal, its execution by one partner is within this restriction.

Eor this reason and because each partner is a tenant in common, the general rule seems to be that real estate belonging to a firm not engaged in the sale of real estate, cannot be conveyed or encumbered by a mortgage made by one partner, unless such power is expressly conferred upon him or the title is vested in him. 1 Lind. Part. 137; Pars. Part. 337. Chief-Justice Shaw in Tapley v. Butterfield, 1 Metc. 578.

There should be a decree for the complainants.


source: Caselaw Access Project

author: Reed, V. C.

license: Public Domain

text:
    Henry Bellingham v. Theodore J. Palmer and Ebenezer A. Smith.
    Improved methods of procedure in courts of law will not strip a court of equity of its jurisdiction in matters of account; but where there is no trust relationship involved and jurisdiction rests solely upon the ground of complicated accounts, the present method of procedure in the law courts will be regarded in deciding whether the accounts are so complex that such courts cannot try them.
    This bill is filed to compel the defendants to account. Bellingham engaged with the defendants to make sole and heel taps for the latter, and he was to receive a certain price per hundred each. He worked with his own servants, in his own buildings, with his own machinery. He commenced in September, 1889, and continued four years and four months. His business habit was to take an account of the week’s work on each Saturday, and deliver it to the defendants. He has a complete account of the amount of his own work for the whole period. He was not paid in full each Saturday. By an arrangement between himself, the defendants and the lessor of the building occupied by the complainant, the defendants paid the rent and charged it up to the complainant. By an understanding between the parties also, all bills incurred by the complainant for repairing his machinery were paid by the defendants and charged up to the complainant. There were charged against Bellingham, therefore, the sums he received in cash, the amount paid by the defendants on Bellingham’s account for rent and for repairs upon his muohiuery. In addition to this charge against Bellingham there was one for loss on account of damages claimed by customers, to whom two boxes of goods, manufactured by Bellingham, had been shipped. One of these boxes was returned, and the other not. The claim was on account of defective goods. There was also a charge for twine furnished to Bellingham. The right to charge the two items last mentioned, viz., for defects in goods and for twine, was in dispute.
    I find that there was no undertaking by the defendants, as charged in the bill, that the defendants should keep the accounts of the dealings between the parties. The defendants kept such accounts in the ordinary course of their business, but they made no promises that they should be regarded as the accounts of both parties.
    I find that during the four years and four months which this business relation continued between Bellingham and the defendants, the former, once or twice a year, inquired how his account stood, and the balance was stated to him. He never asked for a detailed account until after the dissolution of the partnership theretofore existing between the defendants, but after this dissolution he demanded a detailed statement.
    His lawyer also, in an interview with Mr. Smith, one of the former partners, requested such a statement. Mr. Smith says that he offered to accord to the complainant the privilege of examining the books and the vouchers in a room in defendants’ place of business. This offer was refused, and a statement of the account was demanded.
    This statement of Mr. Smith is not denied, and I think is substantially true. After this interview the bill in this case was filed.

      Mr. Charles Borcherling, for the complainant.

      Mr. Thomas Anderson, for the defendants.
   Reed, V. C.

The question is, whether the facts are such as to warrant this court in assuming jurisdiction in this contest, and directing the defendants to account in a court of equity.

The equitable jurisdiction to compel an account rests upon three grounds — -first, the existence of a fiduciary or trust relation; second, the complicated character of the accounts; and third, the need of discovery.

No fiduciary or trust relation is exhibited in this cause, therefore the right to an account cannot be rested upon that ground. Nor is the bill one purely for'discovery.

The discovery asked is only incidental to the main relief sought, namely, an account. The bill therefore cannot be supported as one for discovery, and must rest upon the right to an account, for the rule is entirely settled that where discovery is sought as a mere incident to some other main relief, if the principal relief is denied, the suit must be dismissed. Pennsylvania Railroad Co. v. Hoppock, 1 Stew. Eq. 261; Jewett v. Bowman et al., 2 Stew. Eq. 174; Foley v. Hill, 2 H. L. Cas. 28, 37, 42.

Jurisdiction, therefore, if it exists at all, must rest upon the complicated character of the accounts, and the intricate character of the accounts must be such that if th¿ ease is tried at nisiprius it cannot be tried with any certainty that an accurate result would be reached. Bliss v. Smith, 34; Beav. 508; Taff Vale Railway Co. v. Nixon, 1 H. L. Cas. 111; Foley v. Hill, 2 H. L. Cas. 28; Crane v. Ely, 10 Stew. Eq. 564;.

What will constitute this complexity of accounts is a matter from which little light can be obtained from an examination of the English reports. Every case seems to rest upon its own speciál features.

It is impossible, said Lord Collingham in Martin v. Northeastern Railway Co., 2 Phil. 758, with precision to lay down rules or establish definitions as to the cases in which it may be proper to exercise jurisdiction.

The criterion is, whether the degree of intricacy is such as to deprive a court of law, by reason of its method of procedure, of the ability to properly investigate and decide. In applying this test, I think regard should be had to the modern alteration in the methods of trial in a court of law. When equity first assumed jurisdiction of complicated accounts, there was in a court of law no power to examine a party, to obtain discovery before trial, or to have an account stated by a referee. How, it is true, that in those instances where a court of equity has acquired jurisdiction over a class of cases by reason of the absence of a legal remedy, it will not be deprived of such jurisdiction, either by the operation of a statute conferring similar jurisdiction upon the common-law courts, or by the adoption by the common-law' courts of the principles and practices of the court of equity. Frey v. Demarest, 1 C. F. Gr. 236.

Therefore, in cases of account between persons holding a fiduciary relation, the right to an account in equity exists unchanged, although a court of law has now improved methods of procedure by which some of these matters can now be tried, and would exist unchanged, although the jurisdiction of courts of law should become complete in its procedure and suitable for the trial in such cases. But in cases of account other than those just mentioned, the jurisdiction of the court of chancery is a discretionary jurisdiction. The superior right of a court of law is admitted so long as that court can properly deal with the matters litigated.

How, in determining whether a court of law can adequately deal with an account, I do not perceive why the present, and not the past, method of legal procedure should not be regarded. This is the rule in regard to bills for new trials exhibited in the court of equity. The propriety of such bills is not tested by the restricted power of courts of common law to grant new trials at the time when such bills were first entertained, but is tried by the present liberal practice of the court in this respect. As was observed in Executors of Powers v. Administrator of Butler, 3 Gr. Ch. 465: “Upon examination of the numerous authorities, it will be seen that, as the courts of law have extended their jurisdiction over these subjects, the courts of equity-have withdrawn their jurisdiction from it.” This remark was reiterated in the case of Hannon v. Maxwell, 4 Stew. Eq. 318, 329, decided by the court of appeals.

So it seems to me that the question is whether a court of law can now adequately deal with the account. The question is simply adequacy of the remedy, and that should be decided by the present processes of legal investigation. As already remarked, these processes have become radically changed — so changed, in fact, that the remarks of Judge Finch, in his opinion in the case of Marvin v. Brooks, 94 N. Y. 71, 80, are almost as pertinent here as in the State of New York. Speaking of the jurisdiction of a court of equity in matters of account resting upon their complicity and also for discovery, he observed: “ That the necessity for a resort to equity is now very slight, if it can be said to .exist at all, since a court of law can send to a referee a long account, too complicated for the handling of a jury, and furnishes by the examination of the adverse witness before trial and the production and deposit of books and papers, almost as complete a means of discovery as can be furnished by a court of equity.”

The power to refer, the power to previously examine witnesses and the power to obtain an inspection and copies of books and papers in actions at law, must be taken into account when the question of equity jurisdiction rests upon the single ground of the inadequacy of a court of law to reach satisfactory results in the trial of a legal cause of action.

These improved methods of procedure do not strip this court of jurisdiction in instances of complicated accounts, but when the degree of complexity which will put the case beyond the capacity of the law court to try is to be ascertained, then the present mode of trial is certainly a factor of importance.

There are still many cases in which a court of equity and a master can afford a fuller measure of relief than can a court of law, dealing with the report of a referee; but there are also cases of which'courts of equity would once have assumed jurisdiction which, I think, should now be remitted to the legal tribunals.

In my judgment, the present account is not one for equitable cognizance. As already observed, the quantity of manufactured goods that was furnished by the complainant is entered in complainant’s own books. The cash paid to him each week was within his own cognizance and could have been, but was not eutered on his books. So of the rents, the amount of which he knew. So of the repairs which he had had made. These are entered upon defendants’ books, and, so far as appears, are all entered.

So far the account appears to be one of great simplicity, involving the simple addition of the sums charged.

The only contested items involve purely legal questions— first, whether, under the contract between the parties, the complainant was to pay for the twine used by him; second, whether there was an assent by complainant to the charge for damages for defective goods, or a right to make such deduction arising from the contract between the parties.

I see no difficulty in trying the case at law. Indeed, if sitting at circuit, I would not, ás matters now appear, order a reference.

If the complainant can compel these defendants to account, I see no reason why each one of five hundred employes, to whom wages have been paid on account, cannot compel the employer to do the same, or why any person, after a few weeks’ dealing with a grocer on credit, has not the same privilege.

There is characteristic force in the remarks of Chief-Justice Marshall, in his opinion in Fowle v. Lawrason’s Executors, 5 Pet. 495, that it cannot be admitted that a court of equity may take cognizance of every action for goods, wares, merchandise sold and delivered, or of money advanced where part payments had been made, or of every contract, express or implied, consisting of various items of which different sums of money have become due and different payments have been made. Although the line may not be drawn with absolute precision, yet if may be safely affirmed that a court of chancery cannot draw to itself every transaction between individuals in which an account between parties is to be adjusted. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. But in transactions not of this peculiar character, great complexity should exist in the account or some difficulty at law should interpose, some discovery should be required in order to induce a court of chancery to exercise jurisdiction.”

I am constrained to hold that there should be a decree denying the accounting.


text:
    The National Docks and New Jersey Junction Connecting Railway Company v. The Pennsylvania Railroad and The United New Jersey Railroad and Canal Company.
    1. The attorney who represented, in condemnation proceedings, the lessor and the lessee of a railroad across which another railroad company had condemned-land for a crossing, is a proper person to whom to make tender of the sum awarded for damages.
    2. The General Bailroad act (Rev. p. 9%9 § 101), relative to condemnation proceedings, provides that if the party entitled to receive the amount found hy the jury shall refuse to receive the same, then the payment of the said amount into the circuit court shall be deemed a legal payment. — Held, that a tender of the principal sum with interest, followed, after a refusal to accept the same, by payment into court, stops the running of interest on an award for land taken by condemnation.
    3., Interest on the sum awarded for land taken by condemnation should be computed from the entry of judgment and not from the rendition of the verdict.
    4. Though complainant railroad’s proposed plan to cross defendant railroad’s yards by tunneling under the tracks in said yards, will necessitate the elevation and cutting of several of defendant's tracks at a time, and thereby temporarily subject defendant to inconvenience and increased expense in the management of its road, but it appears that by the exercise of skill in adjusting its yard operations to the new conditions it will be able to carry on its business, and that any other plan of crossing, while possible, would entail great expense, danger, delay and infex-ior work, complainant will be permitted to execute said plan, and in so doing will be protected by injunction.
    The bill is filed by the National Docks and New Jersey Junction Connecting Railway Company, to procure an injunction restraining the Pennsylvania Railroad Company and the United New Jersey Railroad and Canal Company from obstructing the complainant in its work of constructing a passage for a railroad across the route of the defendants, according to a certain plan of crossing annexed to the bill, and from placing and maintaining cars upon certain tracks in the yard of defendants in such manner as to prevent the cutting of those tracks.
    The cutting of the tracks mentioned is involved in the plan of crossing adopted by the complainant. This plan was adopted by the complainant in the trial of the appeal from the report of the commissioners in the proceedings for condemnation of the z’ight to cross the yard of the defendants.
    The locality where the road of the complainant proposes to cross that of the defendants, is a yard known as the “ Waldo Avenue yard.” This yard is a short distance from the elevated terminal station of the defendants at Jersey City. It has been operated as presently used for about five years. The locality was originally an elevated tract of land, with an irregular surface, lying on the north side of a street known as Railroad avenue. This surface, by excavation and by filling, was brought to a grade requisite for its use in connection with the main tracks of the defendants, as those tracks were placed upon the elevated iron structure which now supports them and the terminal station. The surface of this yard is covered with a network of tracks, and these tracks are connected with the terminal passenger station by two other tracks. The yard is used for the purpose of distributing the cars of the trains arriving at Jersey City. When a train reaches the terminal station and discharges its- passengers, it is seized by a yard engine and drawn up to this yard. The train is then broken up, its several cars are put upon different tracks in the yard, where, with other cars already there or to be placed there, they, by new combinations, form new departing trains. The cars are there cleaned, the air-brakes tested by compressed air produced in a boiler-house and carried by pipes through the yard. The cars are there tested and heated with steam generated in boilers and carried by pipes along the southerly tracks in the yard. The cars are there watered, viz., with drinking-water from pipes running from a reservoir through the yard. The train when so prepared is, when needed, pushed into the terminal station, ready for its departure.
    It is thus perceived that a yard of this character, somewhere in the vicinity of the terminal yard (the terminal yard admittedly not having the capacity for this work), is an indispensable feature in the operation of defendants’ road.
    As already observed, across the property of the Pennsylvania Railroad Company, upon which this yard is placed, the complainant claims that it has condemned a route for itself. Over this route of crossing so condemned, there is now in place and used by the1 defendants, a large number of tracks, the three most northerly being those over which the passenger 'traffic of the Pennsylvania Railroad Company passes to and from the terminal station, and the next southerly being the westbound engine track leading to the round-house located within the yard; then, a short distance to the south of these there is the eastbound engine track, leading from the round-house to the terminal station; then there are two short tracks leading to the coaling platform.
    To the south of these tracks, and at some distance from them, is the first of a series of twenty-one tracks used for the purposes already indicated. These twenty-one tracks are located side by side, as closely as they can be operated, and with no space to the north or south of the group to which the northerly or southerly tracks can be shifted.
    The manner of crossing the defendants’ property upon which these tracks are placed, as proposed by the complainant, involves the permanent elevation of these tracks at the point of crossing. The elevation of track No. 1, the extreme southerly track, above its present position, is to be sixteen inches. The extent of the elevation diminishes slightly for each until the northerly track is reached, when it will be raised about seven inches above its present position. The plan of crossing proposed also involves the disuse of three of the twenty-one tracks during the time required to complete the structure which the crossing company proposes to build. Stated in detail, the method of the proposed crosing declared by the complainant is this: The complainant will excavate across the yard a trench fifty-four feet in width, upon each side of which a wall is to be built, and resting upon these an arch was to be sprung, upon which the tracks of the Pennsylvania Railroad Company are to be supported. The crown of this arch will be on such a grade as to compel the elevation of these tracks in the manner and to the extent just indicated. The method by which this work is to be executed was declared at the trial of the appeal from the award of the commissioners, and upon this declaration the damages were measured. The connecting company declared that they will begin the work of excavatoin and construction of the arch at the southerly side of the yard, and will progress with the same in sections, northerly, from the point of beginning. They declared that the connecting company will remove from their right of way the three southerly yard tracks of the Pennsylvania railroad, being tracks ISTos. 1, 2 and 3, upon the commencement of their work, and thereafter will keep opén, during the progress of their work across said yard tracks, three of the yard tracks of the said Pennsylvania railroad crossing the route of the connecting company, which tracks shall be adjacent to each other, and the connecting company will complete their arch in sections, so that when yard tracks of the Pennsylvania Railroad Company in excess of three in number shall be removed from the route in the course of construction, an opportunity should be afforded, concurrently therewith, to the Pennsylvania Railroad Company to relay and restore to use a like number of those previously removed across the completed section of the arch, so that said Pennsylvania Railroad Company, during the construction of said arch, may at all times have the opportunity to maintain and use all the yard tracks except three. It was further declared that the connecting company will support the sides and the north end of each section of their excavation, and for the further protection of the yard tracks next north of and adjacent to each section excavated, will, upon beginning excavation in such section, place stringers under such track, across the route of the connecting company, commencing with yard track No. 4, and when that track is taken up, will shift the stringers to the track crossing the route next north of the second section excavated, and so on across the yard, such stringers to be placed in the manner usual in such construction, and so that trains may be run over the track until such tracks may be removed by the connecting company, as above set forth, which stringers shall be placed under each track in such manner as to leave it substantially at the elevation at which it may be found at the time the stringers are put in place.
    It further declared that the connecting company will locate, the northerly line of the most northerly section but one, of their excavation, at least sixteen feet southwesterly from the nearest point of the southwesterly rail of the westbound engine track, so that the eastbound engine track may be operated over the side space left between the excavation and the westbound engine track; the centre line of the eastbound engine track to be located not more than fourteen feet distant from the centre line of the westbound engine track across the route of the connecting company during the progress of the excavation in said section; and the connecting company will not remove said eastbound engine track from said location, until the arch shall be constructed so far northerly that the eastbound engine track can be shifted and used by the owners across the completed part of the arch, if they desire so to do.
    The complainant has already prosecuted its work nearly to the line of track No. 1, and has made an excavation for the foundation.
    The bill charges that after notice to the defendants that track No. 1 would soon be required to be cut, its superintendent replied that he was instructed to protect their possession of all tracks in the Waldo Avenue yard, and its attorney replied that they intended to maintain their tracks at all hazards. This is not denied.
    It appears also that, at that time, there were cars standing on tracks Nos. 1, 2 and 3, none of which were removed save temporarily, to be replaced by other cars; that defendants caused a large number of gondola cars containing ashes and cinders and other refuse to be thrown upon the slope and-upon the workmen engaged in the excavation below, and that on the next day brought a number of cars loaded with stones, which stones were disposed of in the same manner.
    The prayer of the bill is that the defendants may be enjoined from obstructing the complainant in its construction of its railroad upon the plan and in the manner stated, and from placing and maintaining any cars within the route upon tracks Nos. 1, 2 and 3, until complainant shall have completed its arch across said tracks, and from maintaining cars or other obstructions upon any other tracks within complainant’s route under which they desire to excavate in the progress of its construction.

      Mr. Charles D. Thompson and Mr. Charles L. Corbin, for the complainant-.

      Mr. James B. Vredenburgh and Mr. Richard V. IAndabury, for the defendants.
   Reed, V. C.

The defendants at the start raise a question which lies at the threshold of complainant’s right to an injunction. This question does not involve the manner by which the complainant proposes to cross the property of the defendants, but it denies the existence of any right whatever in complainant to come within the limits of defendants’ property.

The defendants deny that the complainant has perfected its condemnation proceedings by a legal tender of the amount awarded by the jury, or by the payment into court of the entire amount of the sum due to the defendants by force of such award.

. The facts' upon which these insistences are based, are these: The verdict on the trial of the appeal from the award of the commissioners was rendered on July 26th, 1895, for the sum of $130,000. Judgment was entered upon that verdict on July 31st, 1895. On August 1st following, the complainant tendered to James B. Vredenburgh the amount of $130,000, together with six days’ interest upon that sum. Mr. Vredenburgh refused to accept the amount tendered.

On August 5th, on notice to Mr. Vredenburgh, an order was made that the amount tendered should be taken by the clerk as paid into the circuit court.

It is objected, first, that the tender to Mr. Vredenburgh was not a legal tender to the defendants. And it is objected, secondly, that interest from the time of the verdict up to August 5th, the date of the payment into court, should have been paid into court with the principal sum.

The General Railroad act (Rev. p. 929 § 101) provides:

“That in case the party or parties entitled to receive the amount * * * found by the jury, shall refuse, upon tender thereof being made, to receive the same, or shall be out of the state, or under any legal disability, then the payment of the amount found as aforesaid, into the circuit court of the county wherein the said land lies, shall be deemed a legal payment.”

In respect to the existence of this condition precedent to a legal payment into court, namely, a legal tender, or the existence of an excuse for such tender, I am of the opinion that the condemning company did all that .they were called upon to perform. In reaching this conclusion, I do not deem it necessary to say that in all cases of condemnation a tender to the attorney who appears in the condemnation proceedings for the landowner is an efficient tender. But as the parties were conditioned in this case, if a tender was essential at all, the method adopted in making it in this instance seems the only one possible.

. The interest in the land condemned was a double interest. The' interest of the United New Jersey Railroad and Canal Company, the lessors, however shadowy it may be, as well as that of the Pennsylvania Railroad Company, the lessee, is represented in the amount awarded by the jury. Bright v. Platt, 5 Stew. Eq. 362.

The amount of the respective interests of the lessor and lessee in this single sum could not be measured by the connecting company.

No tender of a less amount than the award could have been made to either company, nor could there have been made a tender to either of the entire amount, for they were not joint owners of the property condemned.

Under these conditions, a tender made to that attorney who had represented' the owners of all the interests condemned during the condemnation proceedings, and still represents them in all the litigations involved and springing out of those proceedings, was in my judgment a sufficient tender. It may be remarked, in addition, that the Pennsylvania Railroad Company is a foreign corporation, upon whom, by the statute, no tender need have been made as a condition precedent to a payment into court.

Nor do I think that an insufficient sum was paid into the circuit court. If the tender was good, it, followed by payment into court, stopped the running of interest from the time of the tender. Now it appears that interest was paid up to that date.

Again, the legal evidence of the final conclusion in the appellate proceedings was the entry of judgment. This is an essential feature of every appeal. This was so held by the court of errors in Ringle v. Freeholders, 27 Vr. 66, in construing statutory language in respect to condemnation proceedings which was lingually similar to that of section 101 of the General Railroad act. The verdict became a finality as a debt when the judgment was entered, and the amount of interest from that time to the date of the payment into court was included in the sum paid.

The defendants next insist that, even if a right to cross has been condemned, yet the manner of crossing proposed by the complainant is in excess of such right.

The first proposition in support of this insistence is, that the cutting of the three tracks as proposed is the exercise of an exclusive right, pro tanto, in the property of the defendants; that the petition and amended plan of the complainant do not .seek to acquire exclusive possession of these tracks, and that all that the complainant can acquire is a use, common with the use of the defendants, of the place of intersection.

The second proposition is, that the cutting of these tracks would deprive the defendants of the right to fully, fairly and freely exercise their franchises.

The third proposition is, that the permanent elevation of all of the defendants’ tracks and the deprivation of the use of three of them during the process of constructing the proposed tunnel; if it can be justified at all, can. only be vindicated upon the ground that such interference is absolutely necessary to effect a crossing.

In considering the first of these propositions, it is essential that it should be clearly understood what is meant when it speaks of the condemnation of an exclusive right in defendants’ property.

The proposition that there is.no. power in any railroad to condemn an exclusive right in .the property of another corporation is too well settled for any present discussion. That the legislature could have conferred by express grant to this class of public corporations power to condemn such exclusive right, is undoubted. That it has never done so is admitted.; and it is entirely settled that, from the general powers to condemn, this right does not flow. A railroad company possesses the power, under such a grant, to condemn only a right to cross, the use at the point of crossing remaining common to both roads.

Now, it is entirely clear that the proposition of defendants does not mean that the plan proposed results in the permanently exclusive use of any of the property of defendants. It can only import that there will be a temporary deprivation of the use of the three yard tracks during the period required for tunneling and arching the complainant’s way; for it cannot be pretended that the slight permanent elevation of the yard tracks will, after the completion of the work, preclude'the use of those tracks by the defendants substantially in the same manner as they are now used. So the question resolves itself into the query whether the method of crossing which temporarily puts into disuse three'of the twenty-one tracks will so interfere with the operation of defendants’ road as to be unwarranted by the circumstances under which the complainant is compelled to construct its crossing. This question will be further considered hereafter.

The remarks already made seem, for the present, to dispose of the objection that the petition and amended plan do not seek the condemnation of an exclusion use of defendants’ tracks, for it is not contended by the complainant that they are condemning any exclusive right to use the tracks of the defendants. What it claims is that, in effecting the crossing, which, when completed, will leave the exclusive use of those tracks in the defendants, they have the right to temporarily interfere with those tracks to the extent defined in the plan. Whether such an interference is justified will, as already observed, be again discussed.

In respect to the second proposition, the remarks already made are in a degree pertinent. The point involved in this proposition is that if this manner of crossing will prevent the defendants from fully, fairly and freely exercising their franchises, it is an illegal method. This proposition is framed in conformity with the language of the chancellor in delivering the opinion of the court of errors in the case of National Docks &c. Railroad Co. v. United Companies &c., 24 Vr. 217. He there said that the manner of crossing is not to be destructive of the ability of the road crossed to fully, fairly and freely exercise its franchises.”

In that case the question was whether the crossing company could adopt a plan of crossing which involved the permanent elevation of the main line of the defendants’ road three feet and ten inches, and the elevation of its yard above its then grade a height ranging from three feet ten inches on the north to eight feet on the south. It was in respect to the permanent result of this crossing upon the franchises of the crossed company that the opinion was dealing, and it laid down the rule that complainant by its crossing could not destroy the ability of the crossed company to exercise its functions as a public corporation. So the cases cited in support of this rule are in this respect of the same character. The principal one is New Jersey Southern Railroad Co. v. Long Branch Commissioners, 10 Vr. 28. In this case the commissioners had laid out a street longitudinally over a strip of land belonging to the railroad company, upon which was placed a freight track in use. The existence of the street, inasmuch as both street and railroad could not exist in the same place, would have excluded permanently the railroad company from all use of this land. And the inability of the commissioners, under their general powers to condemn for streets, to take this property was put upon the ground that it condemned a permanently-exclusive right to the property of the railroad company.

In the case of New York and Long Branch Railroad Co. v. Drummond, 17 Vr. 644, the question was whether a public road crossing a railroad track, so as to make necessary the permanent removal of parts of certain platforms laid for the use of passengers and freight, was the legal exertion of the power to condemn. The road would permanently displace the platform, and the court held that the parts of the platform were not so essential to the enjoyment of the franchises of the company that they could not, in subservience to the public necessity and convenience, be removed out of the way of a public road.

In State, National Railroad Co. v. Easton and Amboy Railroad Co., 7 Vr. 181, the only pertinent ruling was that, by the condemnation, the defendant would acquire simply a right of way over the lands and incidentally the power to cross the track of the elder company.

In State, Lehigh Valley Railroad Co. v. Dover and Rockaway Railroad Co., 14 Vr. 528, the point litigated was the right of the railroad company to cross the Morris canal by a lift-bridge resting upon stone abutments and level with the lock-walls. The court merely reannounced the doctrine that one corporation could not take the exclusive use of another’s property, necessary to the exercise of its authorized powers, as it resulted in the destruction or diminution of the franchises of the latter corporation ; and it held that the right to cross was acquired and the manner of effecting it was not unnecessarily inconvenient to the canal company.

In the case of Pittsburg Junction Railroad Co.’s Appeal, 122 Pa. St. 511, cited in this argument, the crossing company attempted to run at grade through a coal yard, repair yard and coal shed. The attempt was defeated because, in the language of the court, “it was not an attempt to cross the yard and tracks with a common use, but absolutely to take a portion of the yard for the sole use of the new company, and that it could not be taken for its exclusive occupancy.”

It is perceived that the eases which preclude the crossing company from depriving the crossed company of its ability to fully, fairly and freely exercise its franchises, -are referable to the completed work and its consequences upon the franchises of the elder corporation.

In respect to the power of interference with the property of the land-owning company in effecting a crossing, it seems entirely obvious that it cannot be deemed that the temporary deprivation of the ability of a crossed company to exercise its franchises may not in many instances be essential to the accomplishment of that purposes. The smallest grade crossing of a busy railroad, which crossing merely involves the placing of a frog, may for a time block its traffic, and so prevent the full and free exercise of its franchises. A much more conspicuous instance may be imagined, where the only possible method of crossing involves the interruption of traffic for much longer periods of time. How, whether the right to cause such disturbance rests alone upon the existence of an absolute necessity, or it may be exercised when the condemning company has reasonable need- for it, in either view, occasions must arise when such disturbances of the full and free exercise of a company’s franchises must be permitted.

This conclusion leads to the next proposition of the defendants, which proposition involves the consideration of the conditions which must exist to legalize such disturbance.

The proposition, as already stated, is that the condemning company cannot, in constructing its crossing, put in disuse a yard track of the older company, unless such act is necessary in the execution of the work of constructing the new road.. The word “ necessary ” is employed in its original, absolute sense, the insistence being that no considerations of expedition or amount of labor or skill or expense involved is to enter into the question at all. The point is, that if the condemning company can- secure a way across the existing road, by the establishment of any possible grade for its road, or by the use of any possible method of construction so as to avoid disturbing the use of the elder company’s tracks, then it is bound to do so, no matter now long a period it may require to construct the crossing, or how dangerous, how inferior or how expensive may be the method it is compelled to employ.

.It is perceived that, according to this theory, nothing will justify even a temporary interference with the use of the tracks of the elder company but the existence of an inexorable necessity.

In support of this theory the cases of Regina v. Wycombe Railway Co., 2 L. R. Q. B. 310; Fenwick v. East London Railroad Co., L. R. 20 Eq. 544; Pugh v. Golden Valley Railroad Co., 12 Ch. Div. 274., 15 Ch. Div. 330, and Norton v. London and Northwestern Railroad Co., 9 Ch. Div. 633, are cited. These cases were all constructions of the Railway Clauses act, which empowers railway companies to take and occupy land, so long as may be necessary for the construction of a railroad, for workshops, and to deposit, work up materials used for constructing the road on such lands, and to divert roads and streams of water, if such diversion is necessary for the construction of the railroad. The court held that parliament had expressly granted these extraordinary privileges to the railroad company to be exercised when necessary, and that the word “necessary” in such case meant more than merely convenient; that the diversion could not be made merely because it would diminish the expense of the construction of the railway; that private land could not be used for a mortar mill merely because it was less expensive and more convenient to manufacture the mortar at that point.

In these cases the grant was to occupy prívale property, to divert streams to the injury of riparian owners and to- change the course of public highways. The grant, was, by the terms of the act, limited to those instances where the necessities of the building of the road required this exertion of exceptional power, and the grant of power was properly strictly construed against the grantee in favor of- the public and in favor of the private owners whose property was injuriously affected.

In Easton and Amboy Railroad Co. v. Inhabitants of Greenwich, 10 C. E. Gr. 565, 569, in construing a statute ' which provided that if a railroad company should find it necessary to change the location of any portion of any turnpike or any public road, they are thereby authorized and empowered to do so. The court of appeals, while holding that the existence of the necessity was a question for the court, employed this language : “Whether the necessity for a change of location of a public, road must, as seems to be held by the chancellor, be an absolute necessity to make the change in order to construct the railroad, or need only be that reasonable necessity which arises when, without the proposed change, the company would be seriously inconvenienced or put to great and unreasonable expense, is a question upon which no opinion need be intimated.” And it may be remarked that in the case of State, New Jersey Railroad and Transportation Co. v. Hancock, Collector, 6 Vr. 537, 546, in interpreting the meaning of the word “necessary,” as used in respect to property necessary to railroad . companies for the accomplishment of the objects of their incorporation, and so exempt from taxation, the court of errors defined the word with more liberality. “Power necessary to a corporation [said the chief-justice] does not mean simply power which is indispensable. Such phraseology has never been interpreted in so narrow a sense. There are few powers -which are, in the strict sense, absolutely necessary to these artificial persons, and to concede to them powers only of such a character, while it might not entirely paralyze, would very greatly embarrass their operations.” And the definition of the word “ necessary,” as it was employed in the federal constitution and defined in the ease of McCulloch v. State of Maryland, 4 Wheat. 414, by Chief-Justice Marshall, was invoked in support of the more liberal view.

But, whatever view may be taken of the force which should be accorded to the word “ necessary,” it is not perceived how the cases cited are here pertinent. If the General Railroad act had provided that the railroad company, in constructing a crossing over another road, should have the power to remove the tracks of the older company, if such removal became “necessary” in making the crossing, then these cases would be pertinent, although they might not be deemed controlling. But the General Railroad act contains no such provision. The power to cross is contained in the exception to the proviso to section 36 of the General Railroad act. It also springs out of the right to build a railroad between terminal points, which involves, ex necessitate, the right to cross whatever lies inter-termini. The right to cross, therefore, may be said to rest upon necessity. But, neither by the terms of the statute nor by necessary implication, is the adoption of any particular method of crossing dependent upon the existence of necessity.

The manner of crossing, whether at grade, above or below grade, is left to the judgment of the crossing company, subject to judicial supervision. The supervisory power of the court is to be exercised to the extent that no more interference with the elder company’s road or disturbance of its business shall result than is necessary in executing the work of crossing in-a reasonable manner. If the standard of absolute necessity be applied, then it is not perceptible how grade crossings, in most cases, could be constructed at all, for such crossings must, in nearly every instance, result in interference with the operation of the road of the elder company, and scarcely any predicament can be imagined where the expenditure of money will not secure a crossing above or below grade. All that can be exacted of the crossing company is that the plan of crossing is a reasonable one under the circumstances of the particular case, and when adopted is so executed as to interfere in the least degree with the business of the crossed company.

This was obviously the view of Mr. Justice Knapp, in delivering the opinion of the court of errors in Lehigh Valley Railroad Co. v. Dover and Rockaway Railroad Co., supra, where, after vindicating the right of the Lehigh Valley Railroad Company to cross at all, he used the following language: “ The right to cross is clear and the manner of effecting it is not unnecessarily or unreasonably inconvenient to the canal company.”

A method of crossing which would put into disuse all the tracks of an important trunk line for an indefinite period could hardly be justified by any conceivable difficulty in otherwise executing the work; and the proposed disuse might be so entire and its period so prolonged as to become practically the taking of an exclusive right, which power, as already observed, does not exist.

On the other hand, a plan which involved but a slight interruption of traffic on the elder road might be justified, although such interruption could be avoided by the adoption of a more expensive or inconvenient method of crossing.

In the language of the chancellor, employed in delivering the opinion in National Docks &c. Railroad Co. v. United Companies, 24 Vr. 217, 223, “ the purpose of the law is to preserve, multiply and maintain highways for the development of the country and the general public benefit.” It is the policy of the law, therefore, to see that the ability of an existing corporation to serve the public shall not be unnecessarily impaired. It is equally the policy of the law that the service which the new corporation proposes to render shall not be lessened or impaired by unreasonable expense or by unreasonably inferior methods of construction or operation. The degree in which each company must yield its own convenience and private interests must be determined by what is the most reasonable course to be taken to preserve the continuity of the existing public service on the one hand, and securing the best and most efficient service from the new corporation on the other hand.

How, leaving the region of generalities, we confront the conditions which characterize the present crossing. The question is whether the present plan will entail such a degree of injury upon the defendants, and such disturbance.of their traffic, as to make it reasonable that the complainant should adopt another plan of crossing. This involves, as a matter of course, not only a consideration of the effect of the plan upon the operation of defendants’ road, but also a consideration of the ease or difficulty with which the complainant can employ a less or an entirely non-track-disturbing plan. That the place selected for the crossing is the only practicable point, is settled by the former decision of the court of errors.

The position taken by the defendants is that the cutting of their tracks successively, as the work of tunnel-building progresses, will practically put in disuse all of the parts of these three tracks which lie east of the proposed tunnel; that the capacity of the yard is'now no more than sufficient for its work, and that the defendants have no other available unused space to which this work can be transferred. It is insisted that, in consequence of such deprivation of the use of the eastern portion of the three tracks, it will become impossible for them to drill, clean, heat and water their cars, break up arriving trains, and form and dispatch departing trains of the number and size and frequency that the public service requires, and in the manner in which they now operate their road.

A number of witnesses in support of and in refutation of this view were sworn. Those of the defendants expressed generally their opinion that as the yard is now operated it' is worked up to its full capacity. In enforcing this opinion the method in which the yard is used was developed. The trains arriving at the terminal station are drawn up on the southerly of the four tracks leading from the station to the yard, and are switched onto track No. 8 of the twenty-one yard tracks. Track No. 8 is the artery by which all trains are introduced into the yard. The different cars of a train are then taken separately, or sometimes by couples, and put upon sep'araté tracks. This is accomplished by means of two ladders. Ladder No. 1 consists of two tracks, one leading off to the west from track No. 1, and the other leading from track No. 8. These tracks converge until they meet in a single track.

Ladder No. 2 consists also of two tracks, one leading off from track No. 8 and the other from track No. 16. These tracks also converge and meet in a single track. Into ladder No. 1, by switches, all tracks between Nos. 1 and 8 lead. Into ladder No. 2 all tracks from Nos. 8 to 16 lead. Tracks Nos. 17, 18 and 19 are connected with another track leading off westerly from track No. 16, tracks Nos. 20 and 21, with still another track, which is connected with the preceding track, and, by switches, with all the tracks, leading off westerly from the ladders. Generally speaking, the Pullman cars are placed on tracks Nos. 16 to 21. The trains are made up to be pushed down to the terminal station on tracks Nos. 9 to 16, and the cars are located temporarily, to be used when needed, on tracks Nos. 1 to 7. The point of all this is to show that all this work of drilling, shifting cars arid making up trains is done from the westerly end of the yard; that if any of the three tracks are cut, it will be impossible to run any cars upon that portion of any of the three tracks east of the cut, by working from the west; that the only manner in which the easterly part of this yard can be used is by running the cars upon these tracks at the easterly end from one of the main tracks leading to the terminal station.

Now, it is claimed that, save in exceptional instances, this cannot be done without an impracticable interference with the present use of tracks Nos. 1 and 2 on the main line; that the drilling at the east end, which this will necessarily require, will stop all trains running into the yard on track No. 1, and going out on track No. 2. It is claimed, therefore, that the trackage of the three tracks east of the cut will be lost; that this space is equivalent to room for thirty cars; that besides this loss of space, the shortening of the tracks will interfere with the' making up of trains, and that the remaining trackage is insufficient to manipulate the cars and trains.

In support of the view that the remaining space is insufficient for their work, tables of the number of trains received at and dispatched from the yard, the average number of cars to each train, the length of the cars and the extent of the available trackage, excluding cleavage and working room, were exhibited. From these opinions and figures, defendants claim that it is established that the loss of space which will follow the cutting of these tracks will prevent the handling of their business in their present yard, and they claim that they have no other available space which can be put to the same use.

On the other hand, witnesses for the complainant, who examined the yard, expressed the opinion that the eastern portion can, after the cutting, be used for those cars the less frequently used; that a switch can be placed connecting track No. 8 with the eastbound engine track; that the movement of the drilling engines can be so accommodated to the movement of the trains moving in and out of the yard as not to seriously interfere with its operation; that thus the loss of trackage will be confined to nine cars, three upon each of the cut tracks. The opinion of some of complainant’s witnesses is to the effect that, assuming the loss of all the trackage to the east, yet there is room upon the remaining usable portions of the tracks for the practical operation of the yard. In support of this view, tables of measurements of the entire tracks of the yard and the number of cars which it would accommodate are exhibited. One witness for the complainant makes room for three hundred and thirteen cars, of an average length of sixty feet, after leaving space on each track of a half car’s length. He further testifies that he counted in the yard at one time, in July, 1893 (in the centennial year), two hundred and seventy-two cars. He further testifies that, by actual count, made on six different days in December last, at different intervals of time during the day, he found the highest number of cars there at any one time to have been two hundred and ten. From all this, it is argued that the capacity of the yard to handle two hundred and seventy-two cars is demonstrated by the fact that they were there, and that the December count shows that the present traffic is so far short of the traffic of 1893 that the loss of trackage caused by the cut will still leave space enough for operating purposes.

The opinion of complainant’s witnesses is further expressed that, even if defendants should be crippled in operating upon the remaining trackage, yet there are other places under the control of the defendants, now unutilized, which can be put into use for this purpose; that there is space between the ladders where tracks can be placed which would accommodate forty-two cars, and space for two tracks in the space next north of the ladders which would accommodate twelve cars; that there is also a plot of land' belqnging to the defendants, lying .on each side of and under the county bridge, which could be used for tracks, and that there are also other facilities on the meadows for the storage of cars.

Objections to each of these views are interposed by defendants’ witnesses. The difficulty of coupling cars upon curved tracks; the interruption of signaling between brakemen and engineers; the requirement of straight tracks, long enough to make up a complete train ; the difficulty of running to and from the county bridge plot without interfering with the traffic upon the two main lines, and the impossibility of introducing switches at the east end of the yard, are, in the opinion of these witnesses, obstacles to the carrying into effect of any of these schemes.

Without running the points of these counter positions into more minute details, I have reached the conclusion that the plan of the complainant will not result in the congestion of defendants’ business to an extent which cannot be obviated by skill and diligence in adjusting their yard operations to the-new, but temporary, conditions brought about by the cutting of the three tracks.

It will result in inconvenience and expense. The plan of working in the yard, with which the agents of the defendants have grown familiar, will have to be reorganized. More switch-tenders and more engines may have to be employed. New tracks, and perhaps new pipes, may have to be temporarily laid. But, while all this will be vexatious, it is, in my judgment, entirely practicable.

This conclusion, however, does not dispose of the question involved, for it remains to consider whether the degree of expense and inconvenience which this change will cause could have been avoided by any other plan of crossing which the complainant could have reasonably adopted. The standard by which this question is to be determined I take to be this: Taking into account the efficiency of the new road when completed, and the time, safety and expense of completing it, would the additional injury to the public service, as well as to the company, caused by any other plan of construction, be as great as that entailed upon the public service and upon the defendants by this plan ?

As already observed, the construction of the arch enclosing complainant’s railroad involves the elevation of track No. 1 to the height of sixteen inches above its present grade, and the remaining tracks a less height. Now, the defendants insist that this arch can be built without putting the overhead tracks into disuse at all. The theory is that, as the excavation of the tunnel proceeds, the tracks can be elevated into their new position and supported upon stringers until the completion of the crown of the arch upon which they are finally to rest.

Most of the testimony of the engineers upon this point was spent in showing how stringers fifty-five feet long, the width of the cut, could be supported while the excavation of the tunnel and the erection of the walls and the turning of the arch were in progress, so supported as to permit the use of the tracks for the use of moving as well as standing cars.

Several plans for accomplishing this result were developed on the trial. Some propose excavating for the wall first, and leaving a core of the tunnel for a middle support of the stringer until the core shall have been partly excavated for turning the arch. Other plans propose the excavation of the centre part of the tunnel first; all, however, involve the support of the stringer by means of posts and braces which depend ultimately for their support upon the .soil itself. This soil is largely composed of filling introduced in grading the yard. The arch is to be built around those supports, the supports being chánged from place to place as the work progresses.

Now, the testimony of the engineers, in respect to the possibility of working out these plans, was very interesting and ingenious, but my reading of the testimony has deepened the impression made upon me by its delivery. I think that it is possible to construct an archway , and support the tracks by one or more of the plans mentioned. The instance mentioned of the springing of an arch, under the statute of William IV., in constructing the London underground railway, and other instances adduced by the witnesses, enforce the fact that there are few engineering difficulties which modern skill, when provoked by necessity and backed by money, cannot surmount. I think that if it became indispensable that an arch should be built under the main track of a railroad so posited that its track could not be displaced, such a feat of engineering could be executed. But it is entirely clear that the execution of this work, by so supporting the tracks, would involve great delay, great expense and probably inferior work. The removal of the materials excavated, the introduction of stringers and the appliances to be employed in supporting them, the frequent shifting of the supports, the difficulty in securing a firm base for them in the soil, the slow and difficult operation of building and turning the arch close under the stringer, embarrassed as it would be by the existing supports and the necessity of changing them as the work progressed, would necessarily be slow, painful and expensive. Besides, it must be kept in mind that it is proposed during all the period of its progress to have cars standing upon or moving over these tracks. This presents an unusual condition of affairs, quite different from mountain-tunneling, where the overarching earth by its own cohesion is in a degree self-supporting, and' dissimilar from working under stringers whose quiescence remains undisturbed and whose weight remains unchanged.

It must be kept in mind that the supports for all these stringers have as their base this soil already mentioned; that the danger of their sinking is so great as to need constant vigilance. Mr. Brown, the chief engineer of defendants’ road, was speaking within bounds when he said that the supporting posts would have to be watched and blocked up all the time, night and day. Now, to my mind, it is demonstrated that an attempt to support these tracks in use, during the execution of this work, would not only result in a degree of inconvenience, delay and expense extremely great, but to a still greater degree in danger to all concerned, whether in operating trains above or in laboring below.

Nor do I think that this inconvenience, expense and danger would be greatly diminished if the complainant possessed the authority to use seventy-five feet instead of fifty-five feet stringers. A chasm of fifty-four feet would have to be spanned by these stringers, and save at the ends they would have to be supported in the same manner as the proposed fifty-five feet stringers.

In my judgment, in either instance, the injury to the complainant, the danger to life threatened by an attempt to effect such support, would be much more than commensurate with the injury and inconvenience which would result to the defendants by the execution of the present plan.

But it is again suggested that it was within the power of the complainant to have so constructed its arch that it would not have caused any elevation of defendants’ tracks.

As I understand the testimony, the present height of the crown of the arch is essential to the passing of complainant’s road at the grade adopted. The depression of the crown of the arch can only be accomplished by lowering the grade of the railroad.

The complainant says that the present grade of its road is as low as it can be reasonably fixed. It appears that at a distance of two hundred and one feet from the portal of the tunnel their road crosses Wayne street, that the authorities of Jersey City compel it to cross above grade, and that this crossing has been effected at the lowest grade possible. From Wayne street to the portal of the tunnel the grade is now one hundred and four feet to the mile. It is in testimony that this is quite a heavy grade. The depression of the tracks at the tunnel to a depth of sixteen inches, so that the crown of the arch would avoid the present tracks, would require a grade of two and sixty-six hundredths feet per one hundred feet.

The testimony shows this to be a grade which, against the traffic, is very hurtful to the operation of a road, as it requires several trains to do the work of one, on account of the inability of one locomotive to haul heavy trains up such an ascent. That the adoption of such a grade would permanently affect the usefulness of the connecting road is manifest; a very strong reason therefor should exist before its adoption by the complainant should be made compulsory. Now, no perceptible reason exists. The only possible effect of the depression of the grade would be to save the permanent elevation of the yard tracks to the height of sixteen inches and less, which elevation, it is not pretended, will cause any material difference in the operation of the yard.

So far as respects the effect of this grade upon the cutting of the tracks, it would seem to have no influence whatever, for the tracks would still have to be supported, if their severance is to be prevented, the only difference being that in one case they would be supported sixteen inches higher than now, and in the other instance in their present position. The difficulty and danger inherent in the work would seem to be exactly the same in kind and degree.

My conclusion, therefore, is that the plan adopted by the complainant upon which damages were assessed is, under the circumstances, a reasonable plan, and that it should be protected in its execution by the injunction powers of this court.

And I further remark that, in arriving at this conclusion, I have ignored the printed case containing the trial of 1893, on appeal from the first award.

I am of the opinion that the fact that witnesses for the defendants, on that trial, testified that the method then adopted would necessitate the cutting of two or three tracks at a time, and that this would compel the running of cars to the meadows, cannot be proved as an independent fact. The issue on that trial was simply the amount of damages. The facts sworn to by the witnesses for the purpose of gauging or augmenting such damages were merely testimony, and as such it is inadmissible in another suit except for the purpose of contradicting the testimony of any witness then sworn and here resworn. Eor such purpose only, by consent, the printed testimony was used.

In respect to the prayer for an injunction contained in the cross-bill, I am of opinion that the facts proved fail to show any intention to continuously trespass upon the property of the defendants outside of the limits of the route condemned.

As to the appointment of a manager, I do not see, at present, any need of such an officer. If the occasion for his appointment should arise, an application for such appointment can hereafter be made. I will, on application, settle the details of the decree.