text:
    Alfred Twaits v. Pennsylvania Railroad Company.
    [Decided March 21st, 1910.]
    1. The court of chancery has jurisdiction of a suit to restrain a defendant in an action at law, begun in a state court and removed by it to the federal court, from relying on a receipt signed by plaintiff as a release of his right of action against defendant.
    2. A contract between a master and a servant which absolves the master from responsibility for his own negligence is invalid.
    3. A contract between a servant of a railroad and its relief department, which stipulates that the acceptance of benefits from the relief fund for injury or death shall operate as a release of claims for damages against the railroad arising from such injury or death, is not invalid as absolving the railroad from responsibility for its own negligence, because, after an accident, the servant may either sue the railroad or accept the benefits accruing to him by reason of his contract with the relief department.
    4. A party to a contract giving alternative rights, who exercises his right of choice and makes an election, is concluded thereby under the doctrine of election at law, though, under the doctrine of election in equity, a mere acceptance does not conclusively evidence election.
    5. A servant of a railroad became a member of its relief department under an application reciting that the acceptance of benefits from the relief fund for injury or death should operate as a release of claims for damages against the railroad for such injury or death. After an injury he accepted benefits from the relief fund, and signed a receipt in full for payment on account of the injury. -There were no misrepresentations or concealments. He had forgotten the provisions of the application at the time of the acceptance of the benefits and the signing of the receipt.— Held that, though the doctrine of election of rights applied, the servant made his election, and he could not he relieved in equity from the effects thereof.
    6. Where a party to an unambiguous contract which gives him alternative rights elects one of the rights, he cannot rescind his election merely because he regrets that he did not select the other, or merely because he had forgotten the terms of the contract which he had read and signed, and which he could re-read at the time lie made his election.
    Heard on bill, answer, replication and proofs in open court.
    This is a bill which seeks to restrain the defendant corporation from taking advantage at law of a receipt signed by the complainant and alleged by the defendant to operate as a release by the complainant of his right of action against the defendant corporation.
    The facts and issues will sufficiently appear in the opinion.

      Mr. George ]). Hendrickson and Mr. John M. Enright, for the complainant.

      Messrs. Vredenburgh, Wall & Carey, for the defendant.
   Garrison, V. C.

Alfred Twaits, the complainant, entered the employ of the Pennsylvania Railroad Company in March of 1904. On the 15th of March, 1904, he made application to become a member of an organization known as the Pennsylvania Railroad Yoluntary .Relief .Fund. In this application he recited that he had been furnished with a copy of the book of regulations of the relief department, and that he bad read those regulations.

One clause of the said application reads as follows:

“And I agree that the acceptance of benefits from, the said relief fund for injury or death shall operate as a release of all claims for damages against said company, arising from such injury or death, which could be made by or through mo, and that I or my legal representatives will execute such further instrument as may be necessary formally to evidence such acquittance.”

On December 3d, 1906, while employed as a fireman on the tug boat “Pennsylvania,” he was injured by being struck upon tlie head liy a bucket lowered into the hold from the deck. ITis version of the accident is that he was engaged in filling buckets with ashes, which were then hoisted to the deck, where other employes of the company emptied the same and caused the buckets to be lowered into the hold for refilling. Such other employes were accustomed to shout a warming to him that the bucket was 'about to descend. Upon the occasion of the accident he claims no warning was given, and the bucket was lowered, and because of his having no knowledge of its approach he was struck by it and injured.

The defendant denies any liability to the complainant by reason of the circumstances, claiming that the injury was caused by a fellow-employe. I do not propose to deal with this phase of the case.

The complainant resumed work upon the 6th day of December, 1906. lie made application to the relief association for benefits because of this accident, and on December 31st, 1906, received a paper which, after signature by him, read as follows:

“R. D. 03. Order Number 42583.
The Pennsylvania Railroad Voluntary Relief Department.
Office of the Superintendent, Philadelphia., Pa.
Dec. 15, 1900.
Treasurer Pennsylvania Railroad Company,
Philadelphia, Penna.
Will pay Alfred Twaits Certificate No. 202897, employed as Fireman, .by the Pennsylvania Railroad Company One Dollar ($1). Benefits for 2 days from Dec. 4 to 5 inclusive, on account of accident and charge ‘Relief Fund Orders.’
Approved for payment:
(26) Fe. Bosill. J. C. Van Roden,-
For Comptroller. For Superintendent.
Received Dec. 31st, 1906, One Dollar in full for the above order. (W)
Witness — F. W. Jones (Signature). Alfred Twaits.
Read This — This receipt must be dated, signed by the person in whose favor the order is drawn, and witnessed by some one knowing the signer to be the proper person. The signature must conform to the name as written in the order. A person unable to sign will make his mark.
This order is payable by any Freight or Passenger Agent of the Pennsylvania R. R. Company’s system east of Pittsburgh and Erie, or by any Bank designated as a depository of the Company, when receipted in accordance with instructions below.”

The following day he took the paper to a ticket agent of the company and received the sum of one dollar.

He continued in the company’s employ for about eleven months after his injury. He afterwards applied for and received sick benefits, but claims that such sickness was not alleged b3r him to be connected with or consequent upon this injury. On February 14th, 1907, he made application to substitute another beneficiary who should receive any death benefits due by reason of his membership.

In Fovember of 1908 Twaits brought an action to recover damages by reason of the injuries received on December 3d, 1906, as aforesaid, in the Hudson county circuit court. 'The defendant removed this suit to the circuit court of the United States for the district of New Jersey, and, in March, 1909, filed a plea of general issue. Before the date reached for trial leave was obtained to file a further plea, and the defendant, under such leave, then filed a plea setting up Twaits’s membership in the relief association, the agreement in his application, the acceptance of the sum of one dollar and the receipt quoted above, all of which it averred operated as a release of all claims for damages. Thereupon, on Fovember 1st, 1909, Twaits filed this bill, which, broadly speaking, charges that at the time of the acceptance of the money for which he gave the receipt, he had forgotten the provisions of the application that the acceptance of the benefits should operate as a release; that he did not intend to release the company thereby, nor to exercise an election to receive benefits rather than to pursue his claim for damages. He tenders himself ready and willing to return the amount received, and praj's that the defendant be compelled to surrender up the receipt for cancellation; and that the effect of said payment and receipt as an act of release may be set aside; and that the defendant may be enjoined from setting up the same as a defence in the action pending at law.

An initial objection raised by the defendant must be dealt with before other features of the case can be considered.

The defendant contends that the court of chancery of New Jersey is without jurisdiction to make any decree in favor of the complainant in this suit because jurisdiction having first been acquired by the United States circuit court, its jurisdiction is exclusive. That not only comity but public policy forbids the exercise of jurisdictional powers in this court over the proceedings of the federal court, or the interference with suitors in an action pending in the federal court.

I do not agree with the view of the law contended for by the defendant as just expressed in stating his objection to this court’s jurisdiction. The proposition of the defendant, it should first be observed, is, in any event, too broadly stated by it. It could hardly be contended, T think, that the matters urged by it should result- in a finding of a lack of jurisdiction in this court. The parties being properly before the court, and the subject-matter being equitable in its nature, there cannot properly be said to be any want or lack of jurisdiction. The objection of the party properly stated would be that comity or public policy forbade this court from exercising its jurisdiction under the circumstances; and I shall consider its objection as if made in that form; and I do not find that it is well founded.

The matter has been so fully dealt with, and the cases bearing upon the matter so fully quoted from or cited by the present chancellor in the case of Bigelow v. Old Dominion Copper Mining and Smelting Co., 74 N. J. Eq (4 Buch.) 457, that I shall not enter into any further discussion of this point. As a result of a very careful consideration given by the court in that case, the principle is enunciated as follows (at p. 473) :

“I have not the least doubt or-difficulty about the power of a court of equity in one state to restrain its own citizens, or other persons within the control of its process, from the prosecution of suits in other states or in foreign countries. The power proceeds from the undoubted authority that a court of equity possesses over persons within its jurisdiction to restrain them from doing anything that is contrary to equity and good conscience, to the wrong and injury of others, whether the threatened inequitable conduct consists in the prosecution of an action or whatever it may happen to be. The court of equity thus appealed to acts in personam, and it is immaterial whether the threatened inequitable conduct is to be carried on within or without the limits of the jurisdiction. 1 High Inj. § 108; Story Eq. Jur. (12th ed.) §§ 899, 900; Margarum v. Moon, 63 N. J. Eq. (18 Dick.) 686, and cases cited.”

Since the gravamen of this bill is that the railroad company, the defendant in the law suit pending in the other jurisdiction, is setting up as a defence a receipt claimed to operate as a release, which, under the circumstances alleged in the bill, it is charged it is inequitable for it to do, I find there is no principle of comity or public policy which forbids this court from passing upon the equitable claims of the complainant and exercising whatever of its jurisdiction it finds proper under the circumstances. My opinion is that this would be so even if tire action at law were pending in one of the courts of a sister state; therefore, a fortiori, would it be true where the suit at law was pending in Yew Jersey and was removed by the defendant to the federal court, where, I assume, it could also have removed this equitable action had it seen fit to do so.

The jurisdiction at law is not interfered with by this equitable action. Whatever jurisdiction the circuit court of the United States has power to exercise with respect to the action at law is left unimpaired and is not taken over into this court in this action in any way. The sole thing sought by the complainant here is equitable jurisdiction over the defendant to prevent it from inequitable conduct. I entirely agree with the expression of the learned chancellor, as above expressed, that there is no doubt or difficulty about the right of the exercise of the power of equity of its jurisdiction under such circumstances.

It therefore becomes necessary to investigate the equitable claims of the Complainant for the purpose of seeing whether they are well grounded.

Succinctly stated, the theory and argument of the complainant are as follows: The law forbids, and, therefore, treats as invalid a contract between an employer and employe which absolves the employer from responsibility for his own negligence. This contract, entered into between Twaits, an employe of the Pennsylvania Eailroad Company, and the relief department, would come under this ban and be invalid were it not for the fact that after an accident the employe is left free either to sue the company or accept the benefits accruing to him by reason of his membership in the relief department.

Such is the construction placed upon this contract by our own and many other courts: Beck v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1899), 63 N. J. Law (34 Vr.), 232; Owens v. Baltimore and Ohio Railroad Co., 35 Fed. Rep. 715; 1 L. R. A. 75; Otis v. Pennsylvania Railroad Co., 71 Fed. Rep. 136; Shaver v. Pennsylvania Railroad Co., 71 Fed. Rep. 931; Johnson v. Philadelphia and Reading Railroad Co., 163 Pa. 127; 29 Atl. Rep. 854; Ringle v. Pennsylvania Railroad Co., 164 Pa. 529; 30 Atl. Rep. 492; Donald v. Chicago, &c. (Iowa Sup. Ct.), 33 L. R. A. 492; Pittsburg, C. C. & St. L. R. R. Co. v. Moore (Ind. Sup. Ct.), 44 L. R. A. 638; Johnson v. C. & S. R. R. Co., 55 S. C. 152; 44 L. R. A. 645; Cox v. Pittsburg, C. C. & St. L. R. R. Co. (Ohio Sup. Ct.), 35 L. R. A. 510.

The complainant thereupon continues that, since the thing which saves the contract from being invalid is the election left to the employe, he is not bound by the acceptance of benefits and the signature to the receipt, if he proves that he did not make an election; that the mere acceptance of the benefits is not to be taken as evidence of an election. He cites cases — most, if not all, 'of them arising out of testamentary dispositions — in which the acceptance by a beneficiary of money or property was not held to conclusively bar such beneficiary from surrendering the same and taking what he was otherwise entitled to, in cases where he was entitled to one of such things but not to both — the doctrine of election being involved in such cases, and the courts having held that the mere acceptance will not be held to conclusively evidence election in such instances as they find that the party did not actually.elect. Young v. Young (Vice-Chancellor Pitney, 1893), 51 N. J. Eq. (6 Dick.) 491; Parker v. Seeley (Vice-Chancellor Pitney, 1897), 56 N. J. Eq. (11 Dick.) 110; Hill v. Hill (Court of Errors and Appeals, 1898), 62 N. J. Law (33 Vr.) 442.

This doctrine is the doctrine of election in equity, and by reference to its definitions and the cases under it, it will be found inapplicable to the case in hand. See Bouv. L. Dict. (Rawle’s ed.) vol. 1 p. 647; 7 Am. & Eng. Encycl. L. (2d ed.) 56, tit. “Equity Election.”

There is, however, a doctrine of election at law in respect to contracts which, either by definition or the extension of the doctrine, .may be properly said to apply. See Bouv. L. Dict., supra, p. 646; Smith v. Sanborn, 11 Johns. Rep. 59; 5 L. Ed. 60; Dinsmore v. Duncan, 57 N. Y. 573 (at p. 570 et seq.); 12 L. Ed. 361 (at p. 363).

Broadly stated, the law in respect to alternative rights or provisions under contracts is that the party having the right of choice, when he has once elected, is concluded thereby. (See authorities just cited.)

The complainant’s claim here is that he did not actually elect. He bases the claim upon his oath that he forgot the terms of the contract. There is no allegation, charge or proof that anything was concealed, misrepresented or withheld from him. At the time that he became a member of the relief department the contract became effective and binding upon the parties, and the complainant over his own signature agreed that if he accepted the benefits due him by reason of an accident it should operate as a release of any other claim for damages against the company on account of such accident. He does not now contend that the acceptance of the benefits does not so operate as to bar his claim for damages. But he does contend that he has the right to avoid the consequences of acceptance by rescinding his own action in that respect, and giving back the amount received for benefits, and thus be left free to proceed upon a claim for damages.

He, of course, does not stand upon any charge of mutual mistake; and, although he argues that he has the right to rescind by reason of a mistake upon his part, I cannot see that there is any allegation, charge or proof of -what should properly be termed a mistake upon his part. He contends that the unilateral mistake was with respect to the effect of accepting the benefits, but I think this cannot properly be termed a mistake upon his part in the sense in which the word “mistake” is used in equity. If he remembered the terms of the contract, or had them before him at the time he received the benefits, it does not seem possible that it would be correct to say that his conduct was the result of any mistake upon his part. He must be dealt with as a rational human being, and the language of the contract is so utterly unambiguous that no rational human being could mistake the effect upon his claim for damages if he accepted the benefits, the provision of the contract in this respect being entirely clear and unmistakable. The only possible use of the word “mistake” in respect to the complainant’s conduct would be to say that he made a mistake in not re-reading his contract before acting under it.

The real question, therefore, as I view it, is whether a man who is a party to a perfectly clear and unambiguous contract, can act under it and afterwards claim the right to rescind his action and not be bound by it, because there were two alternatives open to him at the time of his action and he now regrets that he did not choose the other one. T'o this question it seems to me there can be but one answer, and that is that he may not. Every principle which goes to make up the totality which we call the law of contracts would be violated if the contrary were held. I need hardly repeat what I have above pointed out, that there is not in this case the slightest suggestion of any fraud, misrepresentation or imposition of any sort. The complainant, by the terms of his contract, was left absolutely free to exercise every right that he possessed. The contract left him free either to accept the benefits and thereby release the railroad company, or not to apply for benefits and be unrestrained in suing for and recovering any damages to which he might be entitled. The only reason why he cannot pursue the latter course now is because at a time when he was’entirely free to choose, and had all the facts at his disposal, he chose to accept the benefits.

The way in which the complainant seeks to avoid the effect of the contract and of his conduct is by alleging and testifying that he forgot what the contract was, and, therefore, when he made application for and accepted the benefits he did not know what the effect would be.

It has been held that, where a man unrestrainedly enters into a contract in writing, he is bound by its terms even if he did not read it or cause it to be read to him. Fivey v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1902), 67 N. J. Law (38 Vr.) 627; Zdancewicz v. Burlington County Traction Co. (New Jersey Supreme Court, 1908), 71 Atl. Rep. 123; Vellekoup v. Fullerton Co. (New Jersey Supreme Court, 1909), 74 Atl. Rep. 793.

This complainant is not even in so favorable a position as one who ineffectually alleges and proves that he did not read or have read to him a contract that he signed, because this complainant did read the contract and certified that he had read it, and at all times had it in his power to obtain and re-read it.

Unless, therefore, this court is prepared' to decide that a man is not bound by a perfectly clear and unambiguous contract which he has read and signed, if he will swear that he has forgotten its terms, it cannot properly decide with the complainant in this suit.

I am not prepared to find that such is the law.

Assuming, therefore, in favor of the complainant that thé doctrine of election of rights applies to his case, I do not find that he has proven that he did not make his election, and that he should be relieved from the effects thereof. The contract was written, was clear, and without the slightest ambiguity. The complainant had read it and signed it and acted undér it. He had made his application for benefits and received them, and he cannot now avoid the effect of such conduct and of his contract by testifying that he had forgotten what his contract was.

I will advise a decree dismissing the bill, with costs.


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Harrison B. Schuler v. Southern Iron and Steel Company et al.
    [Decided April 6th, 1910.]
    Under chancery rule 71, providing that when a complainant shall amend his bill, which has been sworn to, no alteration shall be made in the original bill on file, but the amended bill shall be engrossed anew, sworn to, filed, and annexed to the original bill unless the court shall otherwise order, complainant having filed a sworn bill for an injunction, and a temporary injunction having been denied because of an alleged defect in the bill and proof, with the suggestion that the bill be amended, complainant was not entitled to leave to alter the character of the bill by making unsworn additions thereto.
    On motion for leave to amend the bill.

      Messrs. Edwards <£• Smith, Mr. Maximilian T. Rosenberg (and Mr. A. O. Retie, of the New York bar), for the motion.

      Mr. Ohauncey (?. Parker (and Messrs. ITornbloiuer, Miller & Potter, of the New York bar), contra.

   Garrison, V. C.

The original bill in this case was filed on the 20th of May, 1909. It was a bill for an injunction and relief and was sworn to. Upon the filing of the bill an order to show cause why a temporary injunction should not issue was made, which order was returnable on the 1st of June, 1909.

Upon the argument upon the return of that order the court refused to grant a preliminary injunction because, as it conceived the situation, the complainant’s right to relief was based upon the allegation and proof respecting, the value of the property combed to the defendant corporation. At that time the court not only pointed out this weakness of allegation and proof to the counsel of the complainant, but suggested to them that if the bill were amended in this particular and proof supplied in support of the amended allegation, the court would grant another order to show cause upon such amended bill and give consideration to the important questions which would then exist.

The bill was not amended.

The defendant corporation then demurred to the bill, and the case was upon the list at the October term of this court. Argument was heard upon the demurrer, with the result that the same was sustained substantially for the reasons which caused the court to refuse to grant the preliminary injunction.

A reading of the court’s opinion in disposing of the demurrer will explain the situation. This opinion was filed February 4th, 1910.

On the 23d day of February, 1910, the parties came before the court upon this motion. This motion is based npon a notice to the defendant corporation that the complainant would apply upon the day named

“for leave to file an amended bill, not sworn to, amended in this particular ; by inserting in place of the twelfth section of the original bill of complaint a new section, to be known as section 12” (of which a copy is annexed hereto).

The annexed copy of the proposed twelfth section reads as follows:

“Twelfth: That the representations and statements contained in said plan or scheme of reorganization were false and untrue; that the value of the property of said Southern Steel Company and its subsidiary companies does not exceed the sum of $7,750,000, which fact was unknown to your orator at the time he became a party to said agreement and did not become known to him until the filing of an appraisement in said bankruptcy proceedings subsequent to the time your orator became a party to said agreement; that on or about the 12th day of April, 1909, subsequent to the time your orator became a party to said agreement, the property of the said Southern Steel Company, including the stock of the subsidiary companies owned by it, was sold at a judicial sale for the sum of $5,111,000, to the defendant William W. Miller, a member of the firm of I-Iornblower, Miller & Potter, attorneys for the defendants as reorganization committee aforesaid, and which sale was subsequently confirmed by the United States district court for the northern district of Alabama, the court having jurisdiction of the proceedings in which said sale was had; that said property was bought in by said Miller acting for and on behalf of said reorganization committee and for the purpose and with the intent of turning the same over to said defendant Southern Iron & Steel Company, all as provided in said reorganization agreement, and for which property said Southern Iron & Steel Company proposes to, and unless restrained by this court, will issue bonds and preferred and common stock in payment therefor to the amount of $27,000,000, as provided in said plan.”

Each side has been commendably industrious in furnishing the court with authorities and precedents concerning the matter of amendments.

It is unquestioned, and conceded so to be by the complainant, that this motion is addressed to the discretion of the court; and I can therefore dispose of the same without the necessity of citations of authorities or precedents.

Rule 71 of the court of chancery reads as follows:

“When a complainant shall amend his bill, which has been sworn to, no interlineation, erasure or other alteration shall be made in the original bill on file; but the amended bill shall be engrossed anew, sworn to and filed, and annexed to the original bill, unless the court shall otherwise order.”

I do not think that this is a proper case in which I should otherwise order.

This is a bill for an injunction, and a preliminary injunction may be applied for thereunder at any time.

The bill when filed was sworn to, and I do not think that, under all of the circumstances, there is any reason apparent to me why the complainant should now be permitted to alter the character of the bill by making unsworn additions thereto.

If the complainant desires, I will, in sustaining the demurrer, provide that the same is done without prejudice to his right to file a new bill, under which permission he may file a new bill unsworn to. If, however, he desires to persist in the further prosecution of this particular suit under the original bill and an amended bill, I do not feel justified in exercising any discretion in his favor permitting him to make unsworn additions to the sworn bill.

Upon applications of this sort, appealing to the discretion of the court, all of the circumstances of the parties which in any way concern the subject-matter are proper to be brought to the attention of the court to be considered by it in determining how it should exercise its discretion. It is brought to my attention that this complainant, or members of his family, who were interested in the Southern Steel Company, have brought or promoted various actions against the reorganization committee attempting to reorganize the affairs of that company, and that the subject-matter of this charge or allegation in the original bill was one that was as much within the cognizance of the complainant at the time he filed the original bill as it could since have become. He refrained from adojiting the suggestion of the court, made in June of 1909, that he amend his bill in this particular and support the same by proof. He persisted in urging the sufficiency of the bill as drafted in the face of the demurrer. He now does not show that any facts have become known to him that he did not know at the time that he filed the bill, nor that any proofs are now at his disposal which were not then at his disposal.

The utmost liberality in favor of the complainant would be extended to him by permitting this bill to be amended as he proposes, and it would be an excess of liberality to permit him to change the character of the bill as he desires to do. Many of the authorities and precedents cited to me hold that under similar circumstances discretion should not be exercised in favor of a complainant so as to permit him to make such amendment. They hold that where the matter was wholly within the knowledge of the complainant at the time he filed the bill, and for purposes of his orvn, he refrained from making a direct specific allegation, he cannot, after drawing the fire of the court, then make such.

But that precise question is not before me now, since the complainant here asks for leave to file an unsworn amendment to the sworn bill; and I am clear, as I have above stated, that this should not be granted.

As I understand the attitude of the defendants, they made no vehement objection to the court’s permitting this sworn bill to be amended in the particulars suggested, provided the amendments are supported by proper affidavits showing that which must be shown to induce the court to permit the insertion in the sworn bill of the new verified matter. Yor did the defendant offer objection to the court’s qualifying the order sustaining the demurrer so as to be without prejudice to the right of the complainant to file a new bill. The situation is, therefore, this: The complainant may not amend the sworn bill by unsworn additions to it; he may move to amend the present bill in the particulars desired by following tire proper practice of presenting affidavits vindicating his right and sustaining the allegations set forth in the amendment; he may, if he desires, have a reservation of the right to file a new bill inserted in the order sustaining the demurrer to the present bill, which will provide that the demurrer is sustained, and the bill dismissed, but without prejudice to the right of the complainant to file such new bill, which new bill may then, of course, be unsworn, if he so desires.

I am convinced that no injustice is done to the complainant by denying him what he asks and leaving him the alternative above set forth.

The motion, as made, will be denied.


text:
    Annie Ruh v. Matie C. Dwiggins et al.
    [Decided April 29th, 1910.]
    Where a deed secured by a real estate mortgage was originally free from usury, the subsequent payment of a premium to secure an extension of time did not render it usurious, but the premium should be credited as a payment on the principal of the mortgage as of the time it was paid.
    Heard on bill, answers, replications and proofs in open court.

      Mr. George Frankenstein and Mr. Randolph Perleins, for the complainant.

      Messrs. Matie & Maidmeni, for the defendant Matie C. Dwiggins.
   Garrison, V. C.

This is a bill filed by the complainant to foreclose a mortgage given by Margaret E. Cornell to the Hudson River Realty Company, on the 9th day of December, 1905. By mesne transfers jihis mortgage became the property of the complainant and the land became the property of Matie C. Dwiggins. While the mortgage was in the possession and ownership of Charles E. Ruh, the father of the complainant, it became due, and he began to foreclose it. The principal of the mortgage was $5,000, payable in one year, with interest at six per cent., payable quarterly. Shortly after the foreclosure was begun, the defendant, through an agent, sought Charles E. Ruh, the then owner of the mortgage, and requested an extension. At that time, January 15th, 1908, I find that it was agreed between the parties that the defendant Dwiggins should pay $350 in cash to Charles E. Ruh, the owner of the mortgage, $50 of which was to pay the costs of the foreclosure suit (which was to be discontinued) and $300 of which was a bonus for the extension of the time of the payment of the mortgage, it being agreed that the .mortgage should be extended to the 1st day of October, 1910.

Under the authorities, this payment made and received as a premium for the extension of the time of the payment of the principal of the mortgage, should be credited on the mortgage as of the time when the payment was made. Laing v. Martin (Chancellor Runyon, 1875), 26 N. J. Eq. (11 C. E. Gr.) 93; Hutchinson v. Abbott (Chancellor Runyon, 1881), 33 N. J. Eq. (6 Stew.) 382.

Since the original transaction was free from taint, the subsequent payment of the premium does not affect it. See cases collected in Hann v. Dekater (Vice-Chancellor Bird, 1890), 20 Atl. Rep. 658, to which add Terhune v. Taylor (Chancellor Runyon, 1876), 27 N. J. Eq. (12 C. E. Gr.) 80.

Tlie result is that the complainant is entitled to a decree, the amount of which should be determined as follows, viz.: The principal and interest on this mortgage should be calculated to the 15th day of January, 1908, and from that amount should be taken the $300 paid at that time by the defendant upon the mortgage. The complainant is then entitled to interest at the rate provided in the mortgage upon the sum then reached down to the date of the final decree.

I will hear counsel at the time of settling the decree respecting the matter of costs.

The matter may be referred to a master, or may be brought on before this court by the parties upon notice.


author: Leaming, V. C.

text:
    The Atlantic Refining Company v. Josiah Stokes et al.
    [Submitted January 31st, 1910.
    Decided February 4th, 1910.]
    1. It is the right of an individual who is failing or insolvent to prefer one of his creditors.
    2. It is the right of any creditor of a failing or insolvent debtor, acting honestly and in good faith, to obtain security from his debtor to secure the debt or to extinguish the debt by purchasing property of the debtor which is of the same value as the indebtedness.
    3. The limitation on the right of a failing or insolvent debtor to prefer one of his creditors is found in a want of integrity of purpose on the part of the preferred creditor, and there must be no combination between him and the debtor to hinder, delay, or defraud other creditors of the debtor.
    4. It is not sufficient for the purpose of setting aside a conveyance as in fraud of creditors that the object of the grantor was fraudulent. It must be shown that the grantee participated in that intent, or had knowledge of the object of the grantor, or of such facts as should have put him on inquiry as to the object.

      5. Where a conveyance is made by a failing or insolvent debtor to secure an antecedent debt or to discharge such debts, knowledge on the part of the grantee that the grantor’s object was to defeat other creditors will not operate to vitiate the conveyance, providing the grantee did not actually participate in that purpose by making a reservation in favor of the grantor or in some other manner combining with the grantor to enable him to defeat the other creditors.
    6. In an action to set aside a conveyance as in fraud of creditors, evidence held to show that the grantee receiving the conveyance in discharge of an antecedent debt did not combine with the grantor or participate in a fraudulent purpose to defeat other creditors.
    7. That a grantor in a conveyance by an insolvent debtor given to discharge an antecedent debt was permitted by the grantee to occupy the premises without payment of rent does not show a fraudulent participation by the grantee in the. purpose of the grantor to defeat other creditors, where it is shown that rent was to bo paid.
    S. Where a debt is past due, and the value of property conveyed by the insolvent debtor is about equal to the debt, and there is an absence of knowledge on the part of the grantee of other indebtedness of the grantor, no fraudulent purpose can be properly assumed.
    On bill to set aside conveyance of land.

      Messrs. French .& Bichard's, for the complainant.

      Messrs. Wilson & Carr, for the defendants.
   Leaming, V. C.

The single question presented is whether Mr. Stokes in fact owed Mr. T'atem, on July 28th, 1908, approximately $1,200, and received the conveyance in question in good faith and without any fraudulent or improper purpose. If the indebtedness existed to the amount named and the conveyance was in good faith, it is immaterial, so far as the subsequent judgment creditor of Mr. Stokes is concerned, whether the conveyance was absolute or as security, for the surplus money, which now stands in the place of the property conveyed, is only about $500.

The law controlling controversies of this nature is well defined. So far as the powers of this court extend it is the right of an individual who is' in failing circumstances or insolvent to prefer one of his creditors; and it is also the right of any creditor of such an individual, acting honestly and in good faith, to obtain security from his debtor to secure the debt, or to extinguish the debt by purchasing property of the debtor which is of the same value as the credits surrendered. The limitations upon these rights are to be found in a want of integrity of purpose upon the part of the preferred creditor. There must be no combination between him and his debtor to hinder, delay o1' defraud other creditors of the debtor. It is not sufficient for the purpose of setting aside such a conveyance that the object of the grantor was fraudulent; it must be shown that the grantee participated in that intent, or had knowledge of the object of the grantee, or of such facts as should have put him upon inquiry as to the object. Roe v. Moore, 35 N. J. Eq. (8 Stew.) 526; Muirheid v. Smith, 35 N. J. Eq. (8 Stew.) 303, 308; Merchants National Bank v. Northrup, 22 N. J. Eq. (7 C. E. Gr.) 58, 60. And when the conveyance is made to secure an antecedent debt or to discharge such a debt, it has been frequently held that even' knowledge upon the part of the grantee that his grantor’s purpose is to defeat other creditors will not be operative to vitiate the conveyance, providing the grantee did not actually participate in that purpose by making a reservation in favor of the grantor, or in some other manner combining with the grantor to enable him to defeat his creditors. The reasons underlying the distinction between a present consideration and a pre-existing consideration are well expressed in a note to 20 Cyc. 472, as follows:

“The reasons that have been assigned for the distinction between one who purchases for a present consideration and one who purchased in satisfaction of a pre-existing debt are sound and unassailable. The former is in every sense a volunteer. He has nothing at stake, — no sglfinterests to serve. He may, with perfect safety, keep out of the transaction. Having no motive of interest prompting- him to enter it, if yet he does enter it, knowing the fraudulent purpose of the grantor, the law. very properly, says that he enters it for the purpose of aiding- that fraudulent purpose. Not so with him who takes the property in satisfaction of a pre-existing- indebtedness. líe has an interest to serve. He can keep out of the transaction only at the risk of losing his claim. The law throws upon him no duty of protecting- other creditors. 1-Ie has the same right to accept a voluntary preference that he has to obtain a preference by superior diligence. He may know the fraudulent purpose of the grantor, but the law sees that he has a purpose of his own to serve, and if he goes no further than is necessary to serve that purpose, the law will not charge him with fraud by reason of such knowledge.”

Both. Mr. Stokes and Mr. Tatem have testified that about $1,200 was due to Mr. Tatem at the time of the conveyance for money which the latter had loaned to the former in small ■amounts covering a long period of time. The accumulation of that amount of indebtedness in the manner stated, without some promissory notes or other evidences of the loans being executed by the borrower, is undoubtedly unusual and can appropriately excite suspicion, but when two men of the standing of these men in this community positively testify to the fact, I do not feel justified in doubting its truth.

It cannot be said to be unworthy of belief that one well-circumstanced friend should advance to another, whom' he believed to be solvent, the amount here stated in the manner claimed. The ledger accounts, showing the dates and amounts of the several loans, was undoubtedly- incompetent evidence in the absence of original entries, but the sworn statement of the two men that the aggregate amount was loaned as stated by them is sufficient. I am unable to believe that they swore falsely.

The value of the interest of Mr. Stokes which was conveyed-appears to have been about the amount of the indebtedness.

Both Mr. Stokes and Mr. Tatem have testified that Mr. Tatem knew nothing of the indebtedness of Mr. Stokes to the Atlantic Befining Company at the date of the conveyance, and also that Mr. Tatem had asked for security for the money due on prior occasions, and that it had been promised and its execution deferred.

The fact that Mr. Stokes was permitted to occupy a part of the premises conveyed without, paying rent does not, to my mind, indicate fraud, if it be true, as stated by both parties, that rent was to be paid. Had the conveyance, in fact, been made as a mere cloak to protect the grantor from his creditors, it is not improbable that more care would have been observed to give it the appearance of regularity. One of the badges of fraud defined in 20 Cyc. 450 is:

“Circumstances indicating- excessive effort to give the transaction the appearance of fairness or regularity, which are not usually found in such transactions, are to be regarded as badges of fraud.”

It was but natural, under the circumstances, for Mr. Tatem to refrain from dispossessing Mr. Stokes.

"With the debt past due, and with the value of the property conveyed about the amount of the debt, and with an absence of knowledge on the part of the grantee of other indebtedness of the grantor, no fraudulent purpose can be properly assumed. In Muirheid v. Smith, supra (at p. 309), it is said:

“Astute as courts should be in the detection of fraud, they are not justified in finding it on grounds which show no more than its possible existence. When the acts of the parties admit of a reasonable interpretation in favor of honesty and fair dealing, they should receive ll.”

I will advise a decree directing the surplus money to be paid to petitioner.


text:
    Mary C. Adams v. Alfred Adams, Jr.
    [Submitted January 18th, 1910.
    Decided February 3d, 1910.]
    1. Upon a petition for leave to file a bill of review in a suit for alimony under the Divorce act, setting forth, among other things, that the final decree theretofore entered therein (upwards of three years before the filing of such petition) was void upon its face for the reason that it discloses that it was entered upon and wholly by reason of a stipulation made in open court, and not upon the testimony of witnesses examined in the cause — Held, (1) that if such decree is void upon its face, no leave of court is necessary to file a bill of review; and (2) that such contention cannot be sustained.
    2. Such decree is not in any sense a decree for divorce, but is merely a money decree authorized by the statute in any case where a husband abandons his wife or separates himself from her, and refuses and neglects to maintain and provide for her.
    3. When in such case a defendant, in open court, consents to the entering of a decree for the payment of alimony, he confesses the truth of the averments of the bill, and the decree will be supported to whatever extent it is justified by the averments of the bill.

      . 4. Leave of tlie court to file a bill of review is necessary only when new evidence has been discovered, and none being suggested, in the absence thereof, a bill of review, unless it attacks a decree as void on its face, must be filed within the, period for taking appeals from final decrees.
    5. The present petition alleging that the defendant is unable at the time of the filing thereof to pay the amount which the decree requires, will be entertained as a petition for a modification of the decree.
    G. A counter motion being made by the complainant for the enforcement of the decree in respect of alimony in arrears under the decree, the bringing such petition to a hearing will only be allowed upon the terms of payment by the petitioner of all such arrearages, in default of which proceedings for contempt will bo taken.
    On petition for leave to file bill of review.

      Mr. Ulysses O. Hlyron, for the petitioner.

      Messrs. Gaskill & Gasleill, contra.

   Leaming, V. C.

November 11th, 1904, complainant filed a bill against defendant for alimony under the then twentieth (now twenty-sixth) section of the Divorce act. The bill sets forth, in addition to the refusal of the defendant to provide for complainant, a series of acts of physical violence upon the part of defendant which compelled complainant to leave defendant’s home for her personal safety; and also sets forth, in further justification of her conduct in leaving her husband’s home, instances of criminal conduct on the part of defendant with women, and especially with one Minnie L. McLarren who, the bill avers, had recently given birth to a child which had been begotten by defendant, and which defendant had threatened to bring to his home and adopt and compel complainant to care for.

The answer filed by defendant denies the several averments of the bill touching his wrongful conduct, and charges complainant with improper conduct with other men, especially with one Morrow.

A replication was filed by complainant and the suit came on regularly for hearing before Vice-Chancellor Grey, September 19th, 1905, and a decree for alimony was on that day advised, in which it was decreed that the complainant was entitled to alimony to be paid by defendant to the amount of $2,500 per year, and in which the defendant was directed to pay that sum in quarterly installments, in advance, and to give bond for the faithful performance of the decree.

On March 31st, 1909, a petition was presented in behalf of defendant for leave for defendant to file a bill of review to open the decree above referred to, and to permit him to defend the original suit on its merits. That petition sets forth that the decree above referred to was entered without proofs being taken in support of the bill, but upon a stipulation made in open court and consented to by the solicitors of the respective parties; and further sets forth that defendant was induced to consent to the decree in-the hope that, by avoiding the publicity incident to a trial, he could subsequently induce complainant to return to him and resume her marital relations with him. The petition further sets forth that since the entry of the final decree above referred to, defendant has made repeated efforts to induce complainant to resume her marital relations with him, but without success; that all payments provided for in the decree have been made; that defendant’s resources have become so much reduced that he is unable longer to comply with the terms of the decree; the petition also reiterates the charges against complainant which were contained in defendant’s original answer, and prays that leave be granted to defendant to exhibit a bill of review, and that the final decree be opened and petitioner let in to defend said suit on its merits, and to allege in said defence his changed financial condition; and also prays that the part of the decree providing for the payment of alimony be vacated upon the continued refusal of complainant to return to petitioner’s home, and for general relief.

Complainant’s answer to this petition denies the averments of improper conduct on her part, and denies any changed financial condition upon the part of defendant, and points out that the charges made by defendant in said petition a.re the same as those which were made in the answer filed by him prior to the entry of the decree; and also points out that the time has elapsed within which the decree can be opened by a bill of review; and also sets forth that in 1907 a similar application was made to vacate the decree, and to reduce the amount of alimony, and that that application wras denied. The petition and answer arc both accompanied by sundry affidavits of verification.

Defendant now urges, in support of Ms present application, that the decree is void on its face, for the reason that it discloses that it was entered upon and wholly by reason of a stipulation which was made in open court, and not upon testimony of witnesses examined in the cause. In answer to that contention it may be said that if the decree is void upon its face, no leave of court is necessary to file a bill of review. The contention, however, if considered, cannot be sustained. The decree is not in any sense a decree for divorce, but is purefy a money decree authorized by the statute in any case where a husband abandons his wife or. separates himself from her and refuses and neglects to maintain and provide for her. When, in such case, a defendant in open court consents to the entry of a decree for the payment of alimony he confesses the truth of the averments of the bill, and the decree will be supported to whatever extent it is justified by the averments of the bill. Leave of court to file a bill of review is necessary only when new evidence has been discovered. No new evidence is suggested; in the absence of new evidence, a bill of review, unless it attacks a decree as void on its face, must be filed within the period for appeals from final decrees.- I am, therefore, unable to discern any theory upon which leave to file a bill of review is either necessary or proper.

Another circumstance should, however, be considered. If the decree now attacked can be regarded as void because unsupported by testimony taken at the hearing, that defect is cured by subsequent proceedings which have been taken, which proceedings are fully set forth in the answer and affidavits the complainant has filed in response to the present petition. If necessary, an order may be made at any time amending the decree by reason of the matters which have since transpired in the same cause. The subsequent proceedings here referred to consisted of a petition, similar to the present petition, filed in behalf of defendant April 15th, 1907, whérein it was set forth that the decree herein referred to was entered by virtue of a stipulation and not upon testimony, and that defendant was constrained to consent to the decree in the hope of securing, in that manner, a reconciliation with complainant. The petition asserted that the averments of the answer which was filed to the bill were true; it also set forth that since the making of the decree defendant had demeaned himself in a proper manner, and had sought the return of complainant, and that it was the duty of complainant to return to him; it also set forth that the defendant had, since the date of the decree, sustained heavy financial losses, and that if the decree should not be set aside, the amount of alimony should be reduced.

An answer was filed to that petition and the matter came on for hearing before me upon the testimony of witnesses who were examined in open court September 10th, 1907. In order that I should not be compelled to depend upon my memory touching the scope of that investigation, I have caused a transcript of the proceedings to be made by the stenographer who reported the case, which transcript I now have before me. At that hearing it became entirely apparent from the testimony that the charges made by complainant in her original bill to the effect that defendant had maintained criminal relations with Minnie Mc-Larren, and that a child was born as the result of such criminal relations shortly before complainant left defendant’s home were true. It also appeared that since the decree for alimony defendant had adopted that child and taken the child to his home. The demeanor of defendant on the witness stand, while under cross-examination touching these charges, clearly disclosed his guilt, notwithstanding repeated denials made by him; finally, however, he tacitly admitted their truth, as follows:

“Q. You believed it was your own child, didn’t you, Mr. Adams?
“A. I don’t think I can answer that question very — -such a complicated affair, I would have to say no.
“Q. You mean that this woman had so many admirers that you would not be able to tell whether you or somebody else was the father?
“A. I have heard of her having three or four husbands. I really think that she is a married lady. Of course I don’t know her ins and outs. It is difficult to state facts when you are not posted on the matter.”

George W. Jackson also testified to statements of defendant, in 'which defendant admitted his illicit relations with a woman, and defendant did not deny the truth of Mr. Jackson’s testimony. On the testimony adduced at that hearing, I refused to vacate or modify the decree, and advised an order to that effect.

I will,% at this time, deny the application of defendant for leave to file a bill of review for the reasons stated.

It is, however, entirely clear that a decree for alimony is at all times subject to the control of the court. The section of the statute under which the present decree was made, as well as the corresponding section of the present act, provides that the decree “may be made for such time as the nature of the case and the circumstances of the parties render suitable and proper in the opinion of the court,” and for the court “from time to time to make such further orders touching the same as shall be just and equitable.” In this view, I think the present petition should be entertained as a petition for a modification' of the decree. The petition asserts that defendant is at this time unable to pay the amount of alimony which the decree requires. On that claim defendant is entitled to be heard, and the present petition may be brought on for hearing for that purpose. As to the claim of defendant that complainant should be denied further alimony by reason of her refusal to resume matrimonial relations with defendant, I think it sufficient to say that if complainant left defendant’s home on account of his adultery, she cannot be required to condone that offence, and I do not think it proper for this court in this case again to review that question.

■ The present petition was filed one day before an installment of alimony was due, and no payments have been made since that time. A counter motion is now made by complainant for the enforcement of the decree by proceedings for contempt. The privilege of defendant to bring on his petition to hearing can only be allowed by the payment by him of all alimony which is due under the terms of the decree. Unless that payment is at once made, the necessary proceedings for contempt will be taken.


text:
    Pennsylvania Railroad Company, lessee, &c., v. John B. Kelley et al.
    [Submitted February 14th, 1910.
    Decided February 15th, 1910.]
    1. A mandatory injunction is rarely granted before final hearing or before the parties have had full opportunity to present the facts, and is strictly confined to cases where the remedy at law is plainly inadequate, and a preliminary mandatory injunction will be ordered only in cases of extreme necessity.
    2. Where a brick building is maintained adjacent to a railroad, so constructively defective that it is likely to collapse at any time from the vibrations caused by passing trains and fall upon or in front of a train, seriously endangering the safety of the traveling public and the railroad company’s property, and rendering it impossible for the railroad to be operated with safety to the public, a condition of extreme necessity exists, warranting a preliminary mandatory injunction compelling' the immediate removal or repair of the building by the owner.
    3. A building which, because of its inherent weakness or dilapidated condition, is liable to fall into a highway and injure persons rightfully there, is a public nuisance.
    4. Such building is also a private nuisance where it is liable to fall and injure adjacent property.
    Application for a preliminary mandatory injunction. Heard-on bill and affidavits annexed, and affidavits in reply.
    The bill is filed to compel defendant to tear down a certain building which is adjacent to the railway of complainant company. The bill alleges that the building is in such condition that the lives of people who travel over complainant’s railway are imperiled by the probability that the building will collapse and fall in front of. or on a passing railway train.
    A hearing has been had on the bill and annexed affidavits and affidavits filed in behalf of defendant Kelley at the return of an order to show cause why a mandatory injunction in limine
      should not be issued restraining defendant from longer maintaining the building in its present dangerous condition.
    The bill avers that the line of railway adjacent to the building is being operated by complainant as a common carrier of passengers and freight; that the right of way of complainant was acquired in the year 1831 from one Snowden, who, at that time, also owned the adjacent land on which the building now complained of stands — the building having been erected by a vendee of Snowden in the year 1837, after the railway was constructed and in operation; that the line of railway of complainant at the point opposite the building complained of is depressed twenty-two feet seven inches below the level of the adjacent land, and the adjacent land is laterally supported by buttressed stone walls constructed by the company for that purpose; that the building of which complaint is now made is distant twenty-three feet two inches from the gauge line of the railroad track; that the building is a three-story brick building with an attic, and so. located that the side wall of the building extends in a line parallel with the tracks of the railway a distance of sixty-two feet, including a brick shod annex; that the main building is forty-seven feet above the level of the ground, and the brick shed annex thereto is. twenty-three feet in height. These several averments of the bill a're not denied. The bill further avers that the building is so structurally defective that it is likely to collapse at any time and will fall on the tracks of the railway. The condition of the building is set forth in the bill in specific detail. It is averred that the foundations of the building were improperly constructed and have sunk and given way under the weight of the building; that large cracks exist in the brick wall of the building next to the railway which extend the entire distance between the windows of the second and third stories; that in the rear of the east wall a large crack extends two-thirds the height of the .building; that a long diagonal crack extends across the front of the building between the window frames of the second and third stories; that these cracks show in places a separation of bricks and mortar along the lines of joints, sometimes perpendicularly and sometimes horizontally, and in other places the cracks show that the bricks have broken; that the cracks vary from mere separation, of bricks and mortar to crevices of at least three inches in width; that the rear third-story window on the side of the building overlooking the railway tracks protrudes five or six inches from perpendicular, and is so weakened by a large crack between it and the second-story window below it, that the upper corner of the building is likely to drop at any time; that the whole side of the building overlooking the railway is so much out of the plumb as to overhang the foundation wall and so weakened by cracks as to be in danger of falling at any moment, and that the condition of the building grows noticeably worse from week to week. The bill also sets forth that in the year 1889 the building became so unsafe that the common council of the 'city of Bordentown, on the report of the building inspector of that city, declared the building unsafe and required it to be strengthened, but the city now refuses to take any present action in the matter; that complainant now employs a watchman to guard the railway track opposite the building by day and another watchman by night, to warn approaching trains in the event of the collapse of the building. These several averments of the bill are fully verified by affidavits annexed thereto, and the affidavits of the engineers touching the structural weakness of the building and its danger of collapse disclose that the engineers have adequately acquainted themselves with the facts concerning which they have testified and are well qualified to testify touching the matters stated by them.
    Defendant Kelley has filed and read two affidavits in defence of the claim of complainant. In these affidavits no denial is made of any of the averments of the bill and its accompanying affidavits, except by a general statement in one of the affidavits that “the danger of collapse is not imminent.” This affidavit is made by Charles II. Fennimore. After stating that he is engaged in business in Bordentown as a contractor and builder and is “well acquainted” with the building in question, he says:
    “While the property is in need of some repair, yet it is not in such condition that it cannot be repaired; that while the building might collapse if not repaired yet the danger of collapse is not imminent. That the danger to the building is caused to a great extent and continues to be caused by the increase in large traffic due to the growing and eontinually increasing business of the railroad company. * * * The trains cause the building to shake and vibrate, thereby causing the damage to the building.”
    The other affidavit is made hy Joseph M. Higgins, who is also a contractor and builder of Bordentown. He states:
    “That he is well acquainted with the property known as the Cain property; he knows the three-story brick building thereon erected can be repaired so that it would be perfectly safe and would be strong and lasting for many years. That the building at the present time is cracked in some places and that the condition of the building at the present time is due to the shaking and vibration caused by the trains of the railroad company which runs by it through the cut directly adjoining the said building on the south; that the traffic on the railroad has increased greatly in the last thirty years both in amount and weight and continues to increase from time to time.”
    The other defendant is mortgagee of the property. She has made no opposition to the relief sought.

      Messrs. Gaslcill & Gaslcill, for the complainant.

      Mr. John II. Hutchinson, for the defendants.
   Leaming, V. C.

The accepted rule in this state touching mandatory injunctions, as stated by our court of errors and appeals in Bailey v. Schnitzius, 45 N. J. Eq. (18 Stew.) 178, 184, is that a mandatory injunction “is rarely granted before final hearing or before the parties have had full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be. It is always granted cautiously, and is strictly confined to cases where the remedy at law is plainly inadequate. A preliminary mandatory injunction will be ordered only in cases of extreme necessity.” Substantially the same rule touching preliminary mandatory injunctions is stated by Chancellor Runyon in Whitecar v. Michenor, 37 N. J. Eq. (10 Stew.) 6, 14, and quoted, with approval, in Hodge v. Giese, 43 N. J. Eq. (16 Stew.) 342, 351, as follows: “The court is always very reluctant to grant a mandatory injunction on an interlocutory application, but where extreme or very serious damage would ensue from withholding it, as in cases of interference with easements, or other eases demanding immediate relief, it will be granted.”

In the present case there is not in my mind the slightest doubt touching the truth of the averments of the bill to the effect that the safety of the traveling public is seriously endangered by the maintenance of the building in its present condition. The affidavits filed in behalf of defendant, when considered as affidavits intended to meet the averments of the bill, may be said to practically admit the danger. One of the affidavits, without denying the existence of a present danger, simply says that the building can be made perfectly safe by repairs. The other affidavit, without denying the existence of the detailed structural weakness of the building, as pointed out by the bill and its accompanying affidavits, says: “That while the building might collapse if not repaired, yet the danger of collapse is not imminent,” and then proceeds to point out that the present weak condition of the building is due to the shaking of the building by the traffic over the railway, and that this traffic is constantly increasing. It may therefore be said that there is no substantial denial of the truth of any of the averments of the bill except the single averment to the effect that the building cannot be made safe by repairs.

It is a matter of little concern at this time at whose ultimate expense this threatening danger shall be removed. Complainant company is compelled to operate its road and to supply to the public safe means of transportation. The maintenance of this building by defendant Kelley in its present condition undoubtedly renders'it impossible for the railroad to be operated with safety to the public. The precaution of maintaining watchmen at the point of danger is wholly inadequate for the collapse of the building is most likely to occur at the moment a train is in the act of passing, and thereby causing the very vibrations which are said to have created the structural weakness of the building. The primary consideration at this time is the safety of the public, and that safety must be secured at once. That safety can be secured at once in but one way — the immediate removal of the source of danger. Whether the danger is removed by adequate repairs to the building or by the building being wholly torn down is at this time immaterial, but the danger must be removed at once. The conditions presented are clearly those of extreme necessity. As owner of the dangerous building, the primary duty of the removal of the danger falls on defendant Kelley. His refusal to remove the danger calls for the exercise by this court of its undoubted power to compel him to do so. It is well recognized that a building which, by reason of its inherent weakness or its dilapidated condition, is liable to fall into a highway and injure passers-by or persons lawfully thereon, is a public nuisance. Joyce Nui. § 238. Such a building is also a private nuisance where it is liable to fall and injure adjoining property. Timlin v. Standard Oil Go., 54 Hun (N. Y.) Complainant is equally entitled to relief against the maintenance of the structure here in question whether it be viewed as a private nuisance or as a public nuisance from which complainant suffers private, direct and special injury.

As the material facts are not in substantial dispute and the operation of complainant’s railway cannot be continued with safety to the public or with safety to complainant’s property without the -immediate removal of the danger which is threatened by the continued maintenance of defendant’s building in its present condition, I will advise an order for the issuance of a mandatory injunction directing defendant immediately to remove the building or immediately to repair the building in such manner that all danger of its falling on the tracks of complainant’s railway may be removed. Should defendant assume to remove the danger by repairing the building, the adequacy of the repairs so made may be appropriately inquired into' at any time.

Under the circumstances presented, I think it appropriate to require complainant, before the writ issues, to execute a bond to defendants, in an amount to be ascertained at the time the order for the writ is signed, conditioned to pay to defendants such damages as may be sustained by them by reason of the issuance of the writ, in the event of its being ascertained at final hearing, or on appeal in the event of an appeal, that complainant was not entitled to the relief at this time awarded.


text:
    Charles E. Schwartze, executor, &c., v. The City of Camden.
    [Submitted February 12th, 1910.
    Decided February 12th, 1910.]
    1. In the absence of legislative authority, a municipal corporation cannot delegate its legislative functions, but it may delegate ministerial or administrative functions to subordinate agents.
    2. The legislative body of a municipality may in some cases, without special authorization by the legislature, appoint agents to perform administrative or ministerial acts and clothe them with some degree of discretion, but where the legislature confers on the legislative body of a municipality a power of such quality or in such manner that the exercise of the power in accordance with the legislative intent may reasonably require the deliberate concerted judgment dnd discretion of the members of the body, there can be no delegation of the power.
    3. 1 Gen. Stat. 1895 p. 506 eh. $31, empowering the council of any city owning water works to purchase, when expedient, such additional land as may be deemed advisable for the improvement and extension of the water-supply, confers powers on the council involving judgment and deliberation which the council may not delegate.
    4. The council of a city appropriated a specified sum for the purchase of additional land for the use of the water works. The water committee of the city appointed a sub-committee to contract for the purchase of such lands as the committee thought best. The committee, through the subcommittee, purchased a tract, and reported the same to the council, which confirmed the transaction. The sub-committee made a contract for the purchase of other lands,, but no report of such purchase had been' made to the water committee or to the council. — Held, that the contract made by the sub-committee was not enforceable against the city.
    On bill lor specific performance of contract for sale of land.

      Messrs. French <£• Richards, lor the complainant.

      Mr. Edwin G-. G. Bleakly and Mr. Wilfred B. Wolcott, for the defendant.
   Leaming, V. C.

The hill is filed to compel the city of Camden to specifically perform a certain alleged written contract in which that city is, alleged to have become bound to purchase from complainant certain real estate. The written agreement for the purchase of the land was made in the name of the city by a sub-committee of the water committee of the city. The city now defends upon the ground that the written instrument referred to is not the contract of the city for the reason that the sub-committee could not lawfully bind the city to purchase the land.

The water which is supplied to the inhabitants of the city of, Camden is procured by the city from artesian wells, which are sunk at various places on land which has been purchased by the city for that purpose. The evidence, though not entirely satisfactory, may lie said to sufficiently disclose that the city council of the city of Camden deemed additional land necessary for the purpose named and by an ordinance made $25,000 available for the purpose of purchasing such additional land. The appropriating ordinance merely sets aside $25,000 “for the water department for improving and enlarging the water works system and supply,” but the evidence is to the effect that the real purpose was for the purchase of additional land. The evidence does not disclose that any resolution was passed or other affirmative action taken by city council whereby the water committee was specifically given power to enter into any contract or contracts for the purchase of land for the purpose referred to. While the appropriation referred to appears to have been made without specific direction touching i.ts expenditure, I think the evidence may be said to justify the conclusion that the city council assumed that the water committee of the city would take such appropriate steps as should be found necessary to enable the city to procure such land as should be needed for the purpose named.

By resolution of June 6th, 1908, the -water committee appointed the mayor, city comptroller, city solicitor and Mr. J. E. Hewitt as a committee to procure options on land for the purpose already referred to. Mr. Hewitt was also a member of the water committee. June 9th, 1908, this sub-committee reported to the water committee that they could not operate to advantage unless their powers were enlarged and they were given “power to act,” and on that date the water committee, by resolution, authorized the sub-committee “to act,” thereby, apparently, intending to extend to the sub-committee authority to contract for the purchase of such land as should, in the judgment of the subcommittee, be for the best interests of the city. The sub-committee thereupon consummated an agreement with one Hollingshead for certain land near the pumping station of the water works for $7,550, and made a written report to the water committee of the purchase so made. This report of the sub-committee was approved by the water committee, and on January 20th, 1909, the water committee made a written report to city council wherein the-foregoing matters were set forth at length, and city council thereupon by an affirmative vote expressly confirmed that report and ratified the Hollingshead contract. This report of the Hollingshead purchase, and the manner in which the purchase was reported as having been made, is herein set forth at length because of the claim now made in behalf of complainant, that the action taken by city council in its approval of that report operated as a ratification of the contract for the enforcement of which the present suit is pending.

The contract which complainant now seeks to enforce was made by the sub-committee in the name of the city September 15th, 1908, and $200 was on that day paid to complainant on account of the purchase price. The sub-committee has not at any time formally reported the purchase to the water committee, and no report of the purchase has at any time been made to city council. Suit for the enforcement of the contract has become necessary because the officers of the city will not supply to the sub-committee the balance of the purchase price.

The $200, which was paid on account of the contract, appears to have been paid by a check drawn on the fund already referred to; but I find no evidence which justifies the conclusion that city council ever approved of that payment with knowledge that the payment had been made on account of the purchase price of land.

The report of the water committee touching the Hollingshead purchase disclosed to city council that the water committee was making purchases of land for water works, and that in making the purchases, it was operating through a sub-committee which it had appointed and had clothed with power to make the purchases. It may therefore be assumed, for present purposes, that the approval of city council of that report gave complete sanction to the plan and was equivalent to an original authorization from city council to the water committee to proceed in that manner in making future purchases.

The single question then presented is whether city council had power to delegate to its water committee authority to purchase land for the extension of its water works system.

It is a well-established principle that, in the absence .of express'legislative autlioritjr for that purpose, a municipal corporation cannot delegate its legislative functions; but may delegate ministerial or administrative functions to subordinate officials or agents. In City of Burlington v. Dennison, 42 N. J. Law (13 Vr.) 165, 167, the text of Dill. Mun. Corp. is approved as follows:

“The principle that municipal powers or discretion cannot be delegated, does not prevent a corporation from appointing agents and empowering them to make contracts, nor from appointing committees and investing them with duties of a ministerial or administrative character. The authorized body of a municipal corporation may bind it by an ordinance or resolution, or may, by vote, clothe its officers, agents or committee with power to act for it, and a contract made by persons thus appointed bjr the corporation will bind it.”

The line between legislative powers which may not be delegated and administrative or ministerial powers which may be delegated, cannot be artificially defined with entire accuracy, for it is manifest that the proper exercise of any delegated administrative or ministerial function involves some degree of discretion in any action which may be taken by the agent.. As stated in Edwards v. Watertown, 61 How. (N. Y.) Pr. 463, 488, an authorization to a janitor to purchase a broom to sweep the council chamber, involves the exercise of sofne degree of judgment and discretion upon the part of the janitor. Accordingly, in Burlington v. Dennison, supra, the power delegated to a committee to purchase a steam fire engine was sustained. On the contrary, in Foster v. Cape May, 60 N. J. Law (31 Vr.). 78, a contract made by a committee with an electric light company for lighting the city for a period of five years was not sustained. After stating that the power to enter into such a contract comprises one of the most important functions of the city government and involves the expenditure of a large amount of money, and that such a contract should be entered into after the most careful consideration and with all the formalities appropriate to the execution of contracts of so much importance, the opinion of the court proceeds:

“We think that a contract such as was contemplated by this resolution should either have been negotiated by the city council or, if the negotiations were conducted by a committee, should have been submitted lo the city council fox discussion, consideration and adoption, and that the resolution delegating power to make such a contract was not warranted by the statute in question.”

The statute referred to was a statute empowering the city council to enter into a contract for lighting the city for a term not exceeding five years. Again, in State, Danforth, prosecutor, v. City of Paterson, 34 N. J. Law (5 Vr.) 163, the statute empowered the board of aldermen of Paterson to purchase a suitable site or sites and erect thereon one or more public markets and to employ suitable architects, engineers and other persons necessary to accomplish the purpose. The board of aldermen appointed commissioners to purchase a site and build thereon a public market. In commenting upon this delegation of power the opinion filed in that case says:

“They [the board of aldermen] are herein required to use judgment and discretion in determining the suitableness of the site, and also of the architect, engineer and other persons employed to accomplish the purpose. This they must use, and cannot delegate to others without express legislative authority.”

An examination of these and other cases in this and other states discloses that the legislative body of a municipality may, in some cases, without special authorization by the legislature, appoint agents to perform administrative or ministerial acts, and in so doing clothe the agents with some degree of discretion. But where the legislature confers upon the legislative body of a municipality a power of such inherent quality, or in such manner that the exercise of the power in accordance with the legislative intent may be reasonably said to include the deliberative and concerted judgment and discretion of the members of the municipal legislative body, I think there can be found in the adjudicated cases no justification for a delegation of the discretion so conferred. See State v. Jersey City, 25 N. J. Law (1 Dutch.) 309; State v. Zeigler, 32 N. J. Law (3 Vr.) 262; Melick v. Washington, 47 N. J. Law (18 Vr.) 254; State v. Ocean Grove, &c., 59 N. J. Law (30 Vr.) 110; Tomlin v. Cape May, 63 N. J. Law (34 Vr.) 429; Thurlow Medical Co. v. Salem, 67 N. J. Law (38 Vr.) 111; Ruggles v. Nantucket, 11 Cush. 433, 436; Smith v. Morse, 2 Cal. 524; Thompson v. Schermerhorn, 6 N. Y. (2 Seld.) 92; Elrya Gas and Water Co. v. Elrya, 57 Ohio St. 374; Arnold v. Pawtucket, 21 R. I. 15.

By Gan. Siat. p. 506 § 281, the city council or other governing body of all cities of the second class which own water works, are given the power to purchase, when they shall deem it expedient, such additional land within twenty miles of the municipality as they may deem advisable for the improvement and extension of the water-supply of the city. The exercise of the power here conferred not only appropriately demands careful and deliberate consideration and discriminative judgment on the part of the legislative body of the city in the selection of land in quantity, in location and in characteristics best suited to the needs of the works, as well as a determination of a proper price to be paid for such land as may'be determined upon, but by the very terms of the act the determination of the "necessity” and "expediency” of these matters is instrusted by the legislature to the legislative body of the municipality. The functions to be exercised by the municipal legislative body in performing the duty here imposed upon it, bear little resemblance to the purchase of an ordinary chattel. The necessity and expediency of purchasing land for an additional supply of water is inseparably connected with the selection of land at a location and of a character which shall appropriately mfeet the necessity. Eor the municipality to delegate these discretions to a committee in a manner that shall operate to deprive its legislative body of the power to finally determine whether such land as the committee may deem it expedient to purchase, is in fact necessary or suitable for the needs on which the very existence of the power to purchase is based, is, in my judgment, an unlawful exercise of the powers intrusted by the legislature to the legislative body of the municipality. Such delegation of power and discretion is in fatal derogation of the trust which the legislature has bestowed upon the municipal legislative body.

The cit3r council of Camden has taken no action in which the specific land which the city may need has been in any manner designated or in which any limitation has been placed upon the amount of land to be purchased by its committee, or in which any limitation has been placed upon the price which may be paid for such land as its committee may determine to purchase, except in making the available appropriation only $25,000, or in which the definite character or quality of the land which the committee may purchase has been defined. The only action which has been taken by city council is the appropriation of $25,000 for the purchase of additional land for the use of the water works and the -confirmation of a certain report of the water committee, wherein it appears that that committee, through its sub-committee, has purchased a certain tract of land referred to in that report. So far as the purchase of the tract now in question is concerned, the city council is without official knowledge, for the sub-committee which made the contract of purchase which complainant now seeks to enforce, has not yet reported the purchase to the water committee, and the water committee has not reported the purchase to city council. Should the city be now compelled to comply with the terms of the agreement in question, it will be compelled to purchase a tract of land which the city council has at no time determined to be necessary or suitable for the needs of the city, and of which the city council has not been apprised, either as to location, nature or price.

I am convinced that the contract in question is void for want of lawful authority upon the part of the sub-committee to bind the city to its terms.


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    Frances Doyle v. George F. Blake, executor of the estate of Amelia Hayes, deceased.
    [Submitted February 2d, 1910.
    Decided February 25th, 1910.]
    1. Upon a bill by the sole devisee and legatee of all the estate of a testatrix against the executor to restrain him from selling the real estate in derogation of complainant’s right of election to take the same in lieu of the cash to be derived from its sale — Held, that such right of election on the part of a sole beneficiary is a substantial and beneficial right, and a court of equity will not permit it to be defeated by the existence of an obstacle which the complainant can remove, if permitted to do so.
    2. With the exercise of that election the complainant will become the devisee of the land.
    The bill is filed by complainant as the devisee and legatee of all of the estate of Amelia Hayes, deceased, and seeks to restrain the executor under the will from selling the real estate in derogation of the asserted right of complainant to elect to take the real estate in lieu of the cash to be derived from its sale.
    The will is as follows:
    “1st. I constitute and appoint George F. Blake, of Gloucester City, New Jersey, to be my Executor, of this my last Will and Testament.
    “2nd. I desire that all my just debts and funeral expenses be paid as soon as convenient after my death.
    “3rd. I desire that all my real estate and personal property be sold within a term of one year, or sooner if necessary and the proceeds thereof to be given to my niece, Mrs. Francis Doyle, wife of William Doyle, after all expenses pertaining to such settlement be deducted therefrom.”
    Complainant has offered to pay or secure all debts and administration expenses and has elected to take the real estate in lieu of the proceeds of its sale. The executor refuses to recognize this claim of right upon the part of complainant, and is now about to sell the real estate at public sale. These essential facts are not in dispute.

      Mr. Samuel P. Hagerman, for the complainant.

      Mr. Gharles A. Gogan, for the defendant.
   Leaming, V. C.

It is well settled that where a sale of land is directed by a will and the proceeds of the sale are to be paid to a beneficiary, whose interest is identical, whether he takes the land or the proceeds of its sale, and the executor has no duty to perform with respect to the land or the proceeds of the sale thereof other than to sell the land and pay over the proceeds to the person named, such person has the right to elect to take the land instead of the proceeds, and a court of equity will not allow such executor to sell the land against the wishes of such beneficiary. Gest v. Flock, 2 N. J. Eq. (1 Gr. Ch.) 108, 115; Scudder v. Stout, 10 N. J. Eq. (2 Slock.) 377, 381; Fluke v. Fluke, executor, 16 N. J. Eq. (1 C. E. Gr.) 478, 480; Howell v. Tomkins, 42 N. J. Eq. (16 Stew.) 305; 309, 310; Baldwin v. Vreeland, 43 N. J. Eq. (16 Stew.) 446, 448; Morse v. Hackensack Savings Bank, 47 N. J. Eq. (2 Dick.) 279, 284, 285; Huber v. Donoghue, 49 N. J. Eq. (4 Dick.) 125, 127. An instructive exemplification of the right of election upon the part of a beneficiary of the proceeds of sale of lands, and of the consequences which may flow from the exercise or failure to exercise the right, is found in Craig v. Leslie, 3 Wheat. 563, 576.

In the- present case complainant is made the sole legatee of all of the personal property of testator and of all of the proceeds of sale of all of testator’s real estate, after the debts of testator and expenses of the settlement of the estate are paid. With these charges removed complainant will be the sole person in interest. There can be no just reason assigned why complainant should not be permitted to either pay or adequately secure the payment of these charges and then exercise her election to take the land. This right of election on the part of a sole beneficiary is a substantial and beneficial right, and a court of equity should not permit it to be defeated by the existence of an obstacle which complainant can, if permitted, remove. With the exercise of that election, complainant will become the devisee of the land. Craig v. Leslie, supra.

I will award a further hearing at which defendant may apprise the court of the amount of cash or security which he may require to satisfy all possible needs of the estate for the payment of creditors and expenses of administration. When that is ascertained, an appropriate order will be made.


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    Lavenia Boyer v. Edward T. Boyer et al.
    [Heard March 28th, 1910.
    Determined April 19th, 1910.]
    1. A court of chancery has jurisdictional power, even after enrollment, to open a regular decree obtained by default, to afford defendant an opportunity to make a defence on the merits, where such defendant has been deprived of the defence either by mistake or accident, or by the neglect of his counsel.
    2. Where an application to open a final decree is made before the period for appeal has expired, the modern practice is to apply by petition and order to show cause, and not by bill of review; but, after the period for appeal has expired, or after an appeal has been taken and has been affirmed, the chancery court cannot entertain a petition to open the decree, which can be challenged only by a bill of review.
    3. A bill of review filed after the expiration of the time to appeal will only be entertained in case of new or newly discovered matter.
    4. A petition to vacate a default decree in equity should be accompanied by specific affidavits setting forth in detail all the evidence on which the petitioner relies, and, on the return of the order to show cause, counter affidavits may be read.
    On petition for leave to file bill of review.

      Mr. Powell K. Martin, for the petitioner.

      Messrs. Garrow & Kraft, contra.

   Leaming, V. C.

It is well settled that the court of chancery has discretionary power, even after enrollment, to open a regular decree obtained by default, for the purpose of giving the defendant an opportunity to make a defence on the merits, where such defendant has been deprived of such defence, either by mistake or accident, or by the neglect of his counsel. This has been expressly determined by our court of errors and appeals in Day v. Allaire, 31 N. J. Eq. (4 Stew.) 303, 315. See, also, Cawley v. Leonard, 28 N. J. Eq. (1 Stew.) 467; Brikerhoff v. Franklin, 21 N. J. Eq. (6 C. E. Gr.) 334; Richardson v. Richardson, 67 N. J. Eq. (1 Robb.) 437.

Where the application to open a final decree is made before the period for appeal has expired, the modern practice in this court has been to proceed by petition and order to show cause, and not by bill of review. That procedure simplifies the practice and procures an early determination. In Kearns v. Kearns, 70 N. J. Eq. (4 Robb.) 483, 487, the opinion is expressed that the practice of proceeding in such cases by petition should be encouraged if not exclusively prescribed. That view is sanctioned in White v. Smith, 72 N. J. Eq. (2 Buch.) 697, 700, and in Kelsey v. Dilks, 72 N. J. Eq. (2 Buch.) 834.

After the period for appeal has expired, or after an appeal has been taken and the decree affirmed, the court of chancery cannot entertain a petition to open the decree. Such a decree can be challenged only by a bill of review. Cook v. Weigley, 69 N. J. Eq. (3 Robb.) 836; Sparks v. Fortesque, 73 N. J. Eq. (3 Buch.) 251. And a bill of review filed after the expiration of the period for appeal will only be entertained in case of new or newly discovered matter. Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632.

In the present case a defendant, against whom a decree has been entered by reason of failure to answer, seeks leave to file a bill of review. The application is made by petition setting forth the defence which is claimed and the reasons why an answer was not filed. The petition has been promptly filed and is supported by a general affidavit of verification only. In opposition to the prayer of the petition, several affidavits have been filed which raise substantial doubts in my mind whether the averments of the petition are true. In this condition of the record, I feel it my duty to seek further evidence before proceeding further. I think the prayer of the present petition should be denied; but without prejudice to the right of petitioner to file a petition to open the decree and to permit her to answer. That petition should be accompanied with specific affidavits setting forth in detail all evidence on which petitioner may reply. At the return of an order to show cause, counter affidavits may be read and an early final disposition of petitioner’s claim may, in that manner, be procured.