author: Steyefs, Y. C.

text:
    The National Fire Proofing Company v. William H. Daly et al.
    [Decided June 28th, 1909.]
    1. An assignment of money due a sub-contractor from the contractor for the construction of a municipal improvement did not give to the assignee any lien on the funds in the hands of the city to the credit of the contractor, under act of March 30th, 1892 (P. L. 1892 p. 869), providing for the attachment of such lien, until the sub-contractor had given the statutory notice required to perfect his own lien.
    2. Creditors of sub-contractors for the construction of municipal improvements are entitled to a lien on the moneys due the contractor in the hands of the city under act of March 30th, 1892 (P. L. 1892 p. 869), giving such lien in favor of sub-contractors, their assigns, or legal representatives, &c.
    3. Materialmen having furnished materials to a sub-contractor for the construction of a municipal building did not disable themselves from acquiring a statutory lien on money in the hands of a city applicable to the contract by taking an assignment of the sub-contractor’s claim against the contractor.
    4. Where a notice of a materialman’s claim for a lien on money due the contractor for the construction of a municipal building for materials furnished a sub-contractor had appended a copy of the contract between such materialmen and the sub-contractor containing the terms, time, and conditions of the agreement as required by act of March 30th, 1892 (P. L. 1892 p. 870 § 2), the notice contained a sufficient statement of the terms of the contract.
    5. Act of March 30th, 1892 (P. L. 1892 p. 869 § 1), gives a lien on money due a contractor for the construction of a city building to subcontractors, materialmen, &c., on their compliance with section 2, which requires the service of a verified statement showing the amount of the claim, that, the materials were furnished to the contractor, and that they were actually used in the erection and completion of the contract with the city.—Held, that where a notice of a lien recited that there was due claimant from D., sub-contractor for the mason work on public school No. 9, $6,630.49 for materials supplied in accordance with the contract between claimant and D., all of which had been fully completed, and the affidavit recited that there was due and owing claimant from D. $6,630.49 for materials supplied on and about the construction of public school No. 9, in the city of Hoboken, the statement sufficiently averred that the materials were actually used in the erection and completion of the school under the contract with the city; the word "supplied” being used there in the sense of “furnish” and the word “about” being taken to mean “upon.”
    6. Where notice of a corporation’s claim of lien on funds due the contractor for a public building for materials furnished a sub-contractor recited the state, under the laws of which the corporation was incorporated, it sufficiently stated the corporation’s residence as required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2). '

      7. Where the affidavit attached to a notice of a claim for a lien against the unpaid price of a public building contained no general verification, but merely asserted that the statement inclosed was a true account of the material furnished, together with the dates when the same was furnished, and the prices thereof as it appeared by the claimant’s books, there was no verified statement of the terms and conditions of the claimant’s contract required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2), in order to perfect a lien, though the claim contained a statement of such facts.
    8. Act of March 30th, 1892 (P. L. 1892 p. 370 § 2), declaring that before the whole work is completed, the claimant may file with the city’s financial officer, notices stating the claimant’s residence, verified by his oath or affirmation and stating the amount claimed, from whom due and if not due, when it will be due, the amount demanded, after deducting all credits and offsets, with the name of the person by whom employed or to whom the materials were furnished, and the terms, time g'ivén, conditions of his contract, and that the materials were furnished and actually used in the completion of the contract, did not mean that a verified notice stating the claimant’s residence should be filed, and that another unverified statement reciting the. additional facts should be filed, but that the claimant should file a single statement in which all the requisite facts should be verified.
    9. Where a materialman’s affidavit for a lien on funds due a contractor for a public building had attached thereto a paper styled “invoice” which, in addition to a recital of the date, kind of material furnished, and the prices, contained the words “Terms net 30 days. Goods f. o. b. Now York,” the claim contained a sufficient statement of the terms, time given and conditions of the materialman’s contract as required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2).

    10. Act of March 30th, 1892 (P. L. 1892 p. 370 § 4), provides that no lien shall be binding unless an action is commenced within ninety days; section 6 authorizes the claimant to enforce his claim by a civil action, and section 7 declares that the plaintiff must make all parties who have filed claims parties defendant, and that the court may decide as to the extent, justice, and priority of the claims of all the parties to the action.—Held, that a claimant was not required to bring suit to establish his lien within ninety days, where he had been made a party to a similar suit by another claimant.
    11. Such section further declares that no lien shall be binding unless a notice of pendency be filed wjith the financial officer of the city, township, or other municipality.—Held, that, while only one Us pendens need be filed, if it gives the required information, a notice was insufficient to protect the lien of one of several claimants where it contained no reference to such claimant or its alleged lien.
    12. Under act of March 30th, 1892 (P. L. 1892 p. 370 § 4), each claimant is not required to give separate notice in case his claim is specified in the notice of another claimant, yet each may give notice, and, if he does so, his notice will protect his own claim and those of others mentioned therein.
    13. A materialman’s notice of suit to enforce a lien on funds due a contractor for a public building required by act of March 30th, 1892 (P. L. 1892 p. 370 § 4)t was not defective because it was in the form of a letter, instead of a paper entitled in the cause.
    14. The Bankruptcy act of July 1st, 1898 (P. L. 1898 eh. 541 § 1; SO Gen. Stat. pp. 544< 545j U. S. Oomp. 8tat. 1901 p. 3418), does not invalidate liens of sub-contractors, materialmen, &c., on funds due the contractor for the construction of a public building created by act of March 30th, 1892 (P. L. 1892 p. 369).

    On final hearing on pleadings and proofs.

      Mr. Edward Q. Keasbey, for the complainant.

      Mr. Gilbert Gollins, for Lawson & MacMurray.

      Messrs. Northrop & Griffiths, for the Trussed Concrete Steel Co.

      Mr. J. Merritt Lane, for the Alpha Portland Cement Co.

      Mr. Wayne Dumont, for the trustee in bankruptcy of Daly.
   Steyefs, Y. C.

This is a contest over a fund of $11,219.86 paid into court by the board of education of the city of Hoboken, and admitted to be due from Alexander Whan, the contractor, to William H. Daly, a sub-contractor, in the erection of a public school in Hoboken.

Daly partially performed his contract and then failed. The following persons and companies filed verified notices of their claims for labor performed and materials furnished under the act of 1892 (P. L. 1392 p. 369), an act intended to secure to workmen and materialmen payment of their several claims out of any unpaid money due to the contractor from the municipality.

The claims and dates of service of notice are as follows:

1908.
Jan. 13. Trussed Concrete Steel Co...........$6,630 49
“ 22. National Fire Proofing Co............ 2,740 26
“ 28. Dawson & MaeMurray............... 3,000 00
“ 30. American Safety Tread Co........... 689 00
Feb. 13. Herbert J. Bessant.................. 115 00
Mar. 5. John Hart ......................... 35 00
“ “ Michael P. Gillis.................... 70 00
April 4. Alpha Portland Cement Co........... 1,444 74

Lawson & MaeMurray claim priority over all the other claimants on the ground that they have, in addition to their verified notice, an assignment from Daly of moneys due from Whan antedating the filing of any of the notices.

The Alpha Portland Cement Company claims that the notices . of the Trussed Concrete Steel Company, the National Eire Proofing Company and the American Safety Tread Company are defective, and therefore create no lien. The trustee in bankruptcy urges the shme defects and says further that, as against him, the notices are invalid under the Bankruptcy act.

I will first consider the effect of the assignment. It reads as follows:

“New York, Dec. 21, 1907.
“Mr. Alexander Whan, Hoboken, N. J.:

“Dear Sir—I hereby authorize you to pay to Lawson & MaeMurray, a corporation, the sum of three thousand dollars ($3,000.00) with interest from this date and which amount is for material furnished by them to me for School No. 9, out of any money that may be due to me after this date, and I hereby assign to said Lawson & MaeMurray, out of the monies that are due and owing by you to me or which shall hereafter become due from you to me on account of said building the said sum of Three thousand dollars ($3,000.00).

If this had been an assignment by Whan of moneys due and to grow due from the City, it would be governed by the case of Somers Brick Co. v. Souder, 71 N. J. Eq. (1 Buch.) 759, in which it was held by the court of errors and appeals that an assignment of a contractor’s claim upon a municipality, prior in time, is prior in right. But this is not an assignment of a debt due from a city, but of a debt due from a contractor to a subcontractor. That they are not identical—not an assignment of the same thing—is evident. Until Daly, by giving the statutory notice, had himself obtained a lien upon the funds in the hands of the city, Whan was under no obligation to pay any of it to Daly. Tie might have lawfully satisfied the amount due out of any other money in his hands. The debt due from Whan to Daly was in no sense part of the debt or fund due from the city to Whan. By the very terms of the statute the debt due from Whan to Daly was subordinated to the claims of those of the workmen and materialmen who 'gave the statutory notice, and if Daly assigned what was due from Whan to him he did it subject to their paramount right.

“Wm. H. Daly.
“AVitnessed by A. H. Sims.
“Dee. 23/07.”

It was for some time a matter of doubt whether the creditors of sub-contractors had any lien upon the money in the hands of the city (Somers Brick Co. v. Souder, supra), but this doubt has been removed by the decision in Herman & Grace v. Freeholders, 71 N. J. Eq. (1 Buch.) 541, affirmed on appeal. If this class of creditors have such lien, it is necessarily paramount to Daly’s right as an unsecured creditor to be paid by Whan, and therefore anyone claiming through Daly takes Daly’s right and nothing more. Suppose Daly himself had given no notice, can anyone doubt that those who gave notice would not have had the precedence, and suppose Daly gave notice, would not those who took by assignment from him stand only in his shoes, with such priority or right as he had acquired by virtue of that notice, and nothing more ?

Lawson & MacMurray do not, however, rest alone upon their assignment. They, too, gave a notice, which is third in order of date, and which, without doubt, conforms to all statutory requirements. It is too plain for argument that they did not disable themselves from acquiring the statutory lien by taking the assignment.

I will next consider the claim of the Trussed Concrete Steel Company. It is said that its notice is imperfect—first, because it does not contain a statement of the terms, time given, and conditions of its contract; second, because it does not state that the materials were actually used in the erection and completion of the contract with the city, or even in the erection of the school; third, because the company did not give notice of the pendency of its suit.

As to the first objection I need only say that the notice has appended to it a copy of the contract between the Trussed Steel Company and Dály, and this contains the terms, time and conditions required by the statute. It was, indeed, intimated, though not decided, by 'Vice-Chancellor Pitney in Hall v. Jersey City, 62 N. J. Eq. (17 Dick.) 489, that the contract referred to in section 2 of the act of 1892 was not the contract between the materialman and the contractor, but the contract between the contractor and tire city. This view has not as yet been adopted by the court of errors and appeals. Justice Collins, speaking for himself and some other members of the court, was unwilling to accept it as correct, but the point was not decided. The municipality does not need information about the terms of the contract between itself and the contractor, but it may be important for it to know what are the terms and conditions of the contract of the claimant with his contractor, be such contractor either the original contractor or a sub-contractor. It appears to me that the view of Justice Collins is the more reasonable.

The second objection is more serious. The statute in section 1 provides that any person who shall, as laborer, merchant, &c., perform any labor or furnish any material “on complying with the second section of this act,” shall have a lien for the value of such labor or material upon the moneys in the control of the city, &c.

Section 2 provides as follows:

“And he it enacted, That at any time before the whole work to be performed by the contractor for any such citjr, town, township or other municipality is completed or accepted by said city, town, township or other municipality, and within fifteen .days after the same is so completed or accepted, any claimant may file with the chairman or head of the department, council, board, bureau or commission haying charge of said work, and with the financial officer of said city, town, township, or other municipality, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and if not due, when it will be due, giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed, or to whom the materials were furnished; also a statement of the terms, time given, conditions of his contract, and also that the labor was performed or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city, town, township or other municipality, but no variance as to the name of the contractor shall effect the validity of the said claim or lien.”

It will be seen that the lien given by section 1 is made dependent upon a compliance with the provisions of section 2. One of the things required to be stated by section 2 is “that the materials were furnished to the said contractor and were actually * * *

used in the execution and completion of the said contract with said city.” The fact that the labor and materials went into the building constitutes the equitable foundation upon which the statute rests. The legislature deemed it reasonable that that which went into the work should be paid for out of its price. Obviousty, if the contractor has diverted the material to some other object, the claim is property not against the building or its price but against him.

Although I take this view of the subject, I have, nevertheless, with considerable hesitation, come to the conclusion, looking at the notice proper, the contract and the affidavit appended to it as all parts of one statutory notice and statement, it does sufficiently appear that the material was actually used in the execution of the contract with the city.

The notice says:

“There is due to ns from Wm. H. Daly, sub-eoatractor of Alexander Whan, contractor, for the mason work on Public School No. 9 * * * $6,630.49 for materials supplied in accordance with the contract between us and the said Wm. II. Daly, all of which is fully completed.”

The affidavit savs:

“There is due and owing to said claimant from said William H. Daly the sum of $6,340.49, for materials supplied in and about the construction of public school No. 9 in the City of Hoboken.”

The antecedent to the words “all of which is fully completed” are the words “mason work.” It is, therefore, stated that the mason work on the building has been fully completed. If this were all it would not be a necessary implication that the “reinforcing steel” furnished by the claimant to the sub-contractor was actually used in the work. The mason work might have been completed by means of some other kind of construction or by means of girders, &c., furnished by someone else. But the affidavit appears to negative this possibility when it says that the money is due for the material—that is, the reinforcing steel— supplied in and about the construction of the school. One of the meanings of “supply” is “furnish.” If the materialman furnished the steel wanted in the construction of the school, and the work in which it was wanted was “fully completed,” and if, moreover, it was supplied in and “about” (which latter particle, I think may be taken as meaning “upon”) the construction, the inference would seem to be unavoidable that the material was actually used in the execution of the contract with the city. It is a fair inference, in the absence of proof to the ■ contrary, that “fall completion” was completion according to the contract.

As it has never been held that the very words of the statute must be repeated in the notice I am inclined to think that what is stated, taken as a whole, amounts to the same thing. As was very recently said by the court of errors and appeals in the somewhat analogous case of a chattel mortgage, whose statutory affidavit of consideration was attacked, “it is immaterial that it was inartificially drawn and not technically precise.” Howell v. Stone, 71 Atl. Rep. 914. The third objection, which affects other claimants as well, I will consider later.

The claims of the National Eire Proofing Company and the American Mason Safety Trust Company may, conveniently, be considered together, because, except in their statement of amounts and persons, they are expressed in the same terms. The claims consist of a notice, an affidavit and a transcript of the book account. The objection to them is threefold. It is said (1) that they do not state the residence of the claimant; (2) that they do not contain a verified statement of the “terms, time given and conditions of the contract,” and (3) that no notice of pendency of suit was given.

The first objection is disposed of by the case of Hall v. Jersey City, supra. Vice-Chancellor Pitney there observes that the only proper residence of a corporation is the state in which it is incorporated. The state of incorporation is given in each of the claims. Had the statute required the place of business to be stated the objection would have been more serious.

The second objection involves the proper construction of section 2, quoted above. The act was called by Justice Collins in the Hall Case “crude legislation.” If this may be said of the act as a whole, it is also true of the section under consideration. The question is how far does this ambiguous section require the claimant to verify his claim.

I think it will be conceded that something more than verification of the claimant’s residence was intended. The collocation of the words is unhappy but it is not to be supposed that the legislature intended to require that an unimportant fact should be verified and that all the important facts should be left unverified. But if more than verification of the residence be conceded, then it is difficult to believe that the legislature intended that the most important fact of all—-that which, as I have said, constitutes the raison d’etre of the act, to wit, that the labor or material went into the building, should not be verified. It is possible, of course, to argue that the verification should extend not only to the residence but to all the particulars down to the words “also a statement,”' but I hardly think it was designed to require two papers, first, a notice, verified by affidavit, containing a statement of the less important particulars, and secondly, a statement, unverified, containing the controlling fact. The whole scope of the section points to a single verified notice, including all the required particulars. If the word “containing” be implied before the words “a statement of the terms,” &c., the difficulty in construing the clause vanishes. The change from the participial construction “stating,” “giving” to the substantive “also a statement” cannot weigh much in the construction of this clumsy and ungrammatical clause. The very draughtsman of the notice under examination had no idea that he was to prepare first a notice verified by affidavit and then an unverified statement. He has included all the particulars in one notice. The difficulty is that he has verified only some of those particulars.

This view accords with common practice, for, as far as I am aware, no- one has thought it necessary to file first a formal notice of certain particulars, verified by oath, and then a formal statement of other particulars.

It may be proper to remark that whichever way this case is decided, some of the claimants will be unjustly - excluded. If the word “his” be held to refer to the contract of the sub-contractor with the contractor, or the contract of the contractor with the city, then the claim of the Trussed Concrete Steel Company, already considered, must be excluded, for it contains a statement of the terms and conditions of neither. IE the word “his” be construed as referring to the contract of the Eire Proofing company then its claim will be excluded for the reason I am about to state. If both claims should be deemed free from objection, then the claim of the Alpha Portland Cement Company, whose verification is in all respects full and satisfactory, will not be paid for the fund will be exhausted by the preceding claimants. The fact is that inasmuch as the price of the building is treated as a fund to be distributed among those whose labor and materials have actually gone into the work, it would seem that it ought to be divided, pro rata, for all these claimants stand upon an equally meritorious footing. It is not a case to which the maxim qui prior est in tempore, potier est in jure, is properly applicable. Such, however, is not the statutory scheme and the court must enforce it as it finds it.

I cannot find in the claim of the Eire Proofing company a verified statement of the terms and conditions of its contract. The so-called claim contains such a statement, but the affidavit appended to it does not. The affidavit contains no general verification. It asserts merely that “the statement hereto annexed is a true account of the said material * * * together with the dates when the same were furnished and the prices thereof as appear by the books of the company.” In Hall Co. v. Jersey City, 64 N. J. Eq. (19 Dick.) 766, the court of errors and appeals held that as the testimony showed there were no terms, time given or conditions, there were none to be stated. The fire proofing company’s claim cannot be sustained on any such ground. It has not proved that there were no terms, time given, or conditions. On the contrary, its unverified notice of claim shows that there were. It may be urged that “the statement hereto annexed” should be held to include not only the paper headed “statement” but also the notice. But both the notice and the' affidavit evidently refer to the “statement hereto annexed” as a separate and distinct paper—the paper that contains the transcript from the books of account. To hold that it included the matter contained in the notice would be to hold something that the affiant never intended to assert.

I have more difficulty with the claim of the Tread company. The affidavit is identical with that of the Eire Proofing company, but the statement thereto annexed is not headed “statement” but “invoice,” and it differs from that of the fire proofing company in saying, in addition to the date, kind of material and price, as follows: “Terms net 30 days. Goods E. O. B. Hew York.” This appears to be stated in connection with the price and as affecting it, which it probably does. If this be included in and be part of the true account of the material furnished with the dates and prices, it is verified by the affidavit. I am inclined to hold, as a matter of construction, that it is. This, however, does not save the claim as will be shown presently.

It is furthermore insisted, as against the Tread company and the Trussed Steel Company, that they cannot participate in the fund because they commenced no action within ninety days from the filing of their lien. Somers Brick Co. v. Souder, 70 N. J. Eq. (4 Robb.) 388, is relied upon to support this contention. That case does not appear either to discuss or to decide the precise question here involved, which is whether, if a suit be commenced by a lien claimant within ninety days and the other lien claimants are made parties and answer, the defendants thus made parties must each commence a separate suit,.in order to preserve their respective liens. The insistment seems to be answered by section 7 of the act, which provides that- the plaintiffs must make all parties who have filed claims parties defendant and that the court may decide “as to the extent, justice and priority of the claims of all the parties to the action.” When it is considered that this is the general practice in equity and that the statute in question has been construed by our highest court to afford an equitable and not a legal remedy (Delafield Construction Co. v. Sayre, 60 N. J. Law (31 Vr.) 449), it would seem that a single suit is all that is required. There is nothing in the statute that, as far as I can see, even suggests a different construction. Section 6 does, indeed, say that any claimant may enforce his claim by a civil action, but this section does nothing more than authorize any claimant who has a cause of action to enforce it in the way prescribed by section 7, namely, by making all persons who have filed claims parties. The act nowhere declares that the penalty of not suing as plaintiff shall be the loss of the lien. Section 4 only prescribes that no lien shall be binding unless an action be commenced within ninety days. If the act were as clear in other respects as it is in this I should think it above criticism. The New York cases are in accord with this view. 5 N. Y. Sup. 918; Neuchatel Asphalt Co. v. Mayor, 33 N. Y. Sup. 64; 155 N. Y. 373.

What seems to me, however, to be a fatal objection to the Tread company’s claim is that it gave no notice of the pendency of suit nor did any other party give a notice which named it. Section 4 reads as follows:

“No lien provided for in this act shall be binding upon the property therein described unless an action be commenced within ninety days from the filing of the same and a notice of pendency of said action be filed with the financial officer of said * * * municipality.”

As section 7 expressly says that the plaintiff must make all parties who have filed claims parties, it would seem reasonably clear that when section 4 saj^s that a notice must be filed, one notice only is required if it gives the necessary information. Such was the view of the supreme court of the State of New York, from which state our act was taken, in Newman Lum. Co. v. Wemple, 107 N. Y. Sup. 318. In the appellate division the court says: “The main object of filing a notice of pendency is to furnish people who are interested in the property or fund with a knowledge of what is going on, and that certainly was done by the notice of pendency filed by the plaintiff. * * * I do not think it necessary for each of .the defendant lienors to file separate notices of the pendency of the action. It was entirely sufficient if the plaintiff filed a proper notice, including the names of the defendants to save their rights as lienors.”

Three of the parties gave the statutory notice but none of them mentioned the Tread company as a defendant or party to the proceedings. The Tread company is therefore excluded from the benefit of the notices, if the Appellate Division rightly interpreted the act. That it did so seems to me apparent. The notice must be actual notice; not information that will put the financial officer on an inquiry that may, if pursued, lead to notice. The question, then, is what minimum of information will satisfy the statute. I think that the notice must at least state the general character of the suit and the parties complainant and defendant who would avail themselves of its benefits.

If the financial officer should be notified only that A had sued B, surely that would not be enough, and if he should be notified that a proceeding to enforce claims against the board of education had been begun, the parties not being named, that would give no information. It is argued that the subpoena served upon the board was notice to its financial officer. No doubt it would be if the statute had not, in addition to suit commenced, required notice to a particular officer. It is not pretended that the subpoena was served upon this officer. What Vice-Chancellor Grey tersely said in Somers Bride Co. v. Souder, 70 N. J. Eq. (4 Robb.) 390, is true here. “The statute creates a right of action which, theretofore, had no existence. It prescribes certain conditions and limitations and declares that if they be not observed, the right given only by the statute shall not arise or shall be defeated.”

How strictly the courts feel themselves bound to deal with these statutory liens is exemplified by Daley v. Lumber Co., 70 N. J. Eq. (4 Robb.) 343; affirmed, 71 Atl. Rep. .1133. In a case of this sort all the claimants are, in a sense, actors. I do not think that each actor is obliged to give notice that all the other actors have commenced suit or are parties to a suit against the board. It is enough that each gives notice for himself. If he does, the notice will protect his own claim. If he goes further and mentions other claimants by name, that, I think, will protect those named, for the object of the notice is answered as to them and the statute does not, in terms, require that it be given by anyone in particular. But I do not think that a notice to the financial officer that A is a party to a suit against the board is notice that B is. As none of the notices mention the Tread company I am obliged to conclude that that company has not brought itself within the requirements of section 4.

The notice given by the Trussed Concrete Steel Company was in the form of a letter written by its attorneys, Messrs. Northrop & Griffiths. It contains the required information. The fact that it is in that form and not in the form of a paper entitled in a cause does not make it any the less notice. It mentions the name of the complainant, the National Eire Proofing Company, and although that company gave no notice, I am of opinion that its claim would be saved had it otherwise complied with the requirements of the act. But as I have already said its original notice was not sufficiently verified.

The result is that the Trussed Concrete Steel Company, Lawson & MacMurray and the Alpha Portland Cement Company, whose notices are sufficient, have preferred claims.

The order given by Daly to the Inter-State Engineering Company is disposed of by what I have said of that given to Lawson & MacMurray.

The Bankrupt act does not invalidate the liens created by the statute. Fehling v. Goings, 67 N. J. Eq. (1 Robb.) 386.


source: Caselaw Access Project

author: Stevens, Y. C.

license: Public Domain

text:
    Charles J. Bell, administrator, v. Susan Bird White.
    [Decided July 19th, 1909.]

      X. Where the extent of a widow’s claim to personal property under a will was doubtful, a family settlement entered into by all parties in interest who are of full age without fraud, would not he set aside because of alleged inadequacy of consideration in so far as it affected one of the parties.
    2. A trustee named in a will was not disqualified to act because it was a foreign corporation.
    On bill and answer.

      Mr. George Gilbert and Mr. Gilbert Oollins, for the complainant.

      Mr. Robert J. Bain, for Emily White Sandford, Elizabeth White Eeid and Edward L. White.

      Mr. Garl M. Herbert, for J. Paxil White.
   Stevens, Y. C.

My difficulty in this case has been to understand what there is to decide. The questions propounded seem to be concluded by the agreement entered into. The case comes up for hearing on bill and answers. The answers admit the allegations of the bill; and this is as true of the answer of J. Paul White as it is of the other answers.

It appears that John H. White died on December 10th, 1907, leaving a will by which he bequeathed considerable personalty to his wife and children. The will is, in some respects, difficult to construe, and the widow and children—all of age—for the purpose of facilitating a settlement of the estate, joined in an agreement dated March 24th, 1908, by which they undertook to divide the property on the basis of what they doubtless considered to be the real meaning of the testator. This agreement they re-affirmed with some modifications, grounded on the condition of the property and the extent to which it was liable for testator’s debts, by a supplemental agreement dated April 15th, 1909. The administrator with the will annexed followed up this agreement, to which he is a party, by filing a bill on April 26th, and answers were filed on May 1st. The proceeding appears to be entirely amicable.

By his will testator gave the income arising from five hundred shares of Mergenthaler Linotype stock to his wife, and provided that the said stock or any portion of it remaining after her death was to revert to the estate for final distribution. The question arising on this bequest was whether the wife took a life estate or took absolutely. A gift of income without limitation as to continuance is 'a gift of principal. Does the provision providing for a reverter of the stock or what remains of it after the wife’s death cut down her interest to a life interest, or is it without effect ? Under the case of Rodenfels v. Schumann, 45 N. J. Eq. (18 Stew.) 383, the question is at least doubtful. There are some expressions in the will that may be thought to favor the one construction and other expressions that may be thought to sustain the other. Such being the situation, the parties came together and agreed that the wife should have a life interest merely, and that three of the children—Emily, Elizabeth and Edward—should take the remainder. It is said by the counsel of J. Paul White that this disposition is detrimental to Paul, the other child. So it may be (though even this is not free from doubt) if the widow took only a life estate. But Paul is of age, and signed both the original and the supplemental agreements, and does not object to either of them by his answer. There is no pretence that he has been the victim of fraud or dominating influence, and by the second agreement, at least, he undoubtedly secured an advantage. His legacy of other stock of the same company was not reduced in amount as were the legacies of the other children, because of the necessity of selling a part to pay debts. In this situation the remarks of Sir John Leach in Naylor v. Winch, 1 Sim. & S. 565, appear to be exactly in point. Speaking of a similar situation, viz., that of a will construed by a subsequent agreement, he says: “Where a compromise of a doubtful claim is entered into fairly and with due deliberation and upon consideration, a court of justice cannot inquire into the supposed adequacy or inadequacy of the consideration. Where is it to find a scale for determining the true measure of adequacy? If a court is in such a case to be governed by its judicial opinion upon the rights of the parties, then to him who by that opinion is held to be entitled to the whole property no consideration can be really adequate which is less than the whole and no compromise can ever bind the successful claimant. It is for this reason and because I consider it to be wholly immaterial for the purpose of deciding upon the validity of the deed of compromise that I do not give any opinion upon the arguments by which the counsel for the plaintiff assert her claim. * * * It is enough to support this deed that there was a doubtful question and a compromise fairly and deliberately made upon consideration, and the actual rights of the parties (i. e., under the will), whatever they might be, cannot affect the question.”

Eamily settlements, fairly obtained, are always regarded with favor. Stapilton v. Stapilton, 2 Lead. Cas. Eq. *920; Hewitt v. Crane, 2 Halst. Ch. 171.

This disposes of the first, second and third questions propounded by the bill.

As to the fourth question there seems to be no legal reason why the American Security and Trust Company, although it is a corporation of another state, may not act as trustee, the testator having named it as such. Perry on Trusts, §§ 42, 55; Meinertzhagen v. Davis, 1 Coll. C. C. 335. The question of its ability to take an oath is not involved.

As to the fifth question there can be no doubt that the will, in directing the trustee to hold the residuary estate for seven years from testator’s death, and to hold the legacies to Paul until the happening of one or the other of the contingencies named therein, does not violate the rule against perpetuities. Siedler v. Syms, 56 N. J. Eq. (11 Dick.) 275.

Whether, as a matter of discretion, the trustee, being a foreign corporation, should be required to give security has not been discussed.


text:
    Sophie Zelman et al. v. Henryette Kaufherr.
    [Decided August 6th, 1909.]
    1. A doubt about a title to render it not marketable must be a rational doubt, or real and not fanciful.
    2. An action at law for damages for breach of a restrictive building-covenant can only be brought against the person by whom broken, and not against a subsequent grantee.
    3. An application for a mandatory injunction to protect a restrictive building covenant must be promptly made.
    4. To warrant a mandatory injunction to protect a restrictive building-covenant, the common scheme of building must have been actually preserved.
    5. Adjoining owners who not only stood by while a building- was erected in violation of a restrictive building- covenant, but have themselves violated such covenant, are not in a position to complain.

      Mr. Adrian Bilcer, for the complainants.

      Mr. Samuel F. Leber, for the defendant.
   Stevens, Y. C.

This is a suit for specific performance of a contract to purchase real estate in Newark. The only defence made is that in the deed from Emily Martin, the complainants’ grantor, to the complainant, there is a restriction “that dwellings are the only buildings to be erected on the front portion of said lots * * * and shall be kept back ten feet from the street line.” The averment of the answer is that the complainant erected buildings six feet from the street line and that it would, therefore, be hazardous for her to accept a conveyance.

It is not averred in the answer that Mrs. Martin owns any other land in the neighborhood for tha. benefit of which the restriction was imposed, or that she is herself under any obligation to her grantor to see to it that no building is erected within the prohibited space. It would seem, therefore, that the answer fails to show that the erection of the buildings within the ten feet line has caused -any substantial injury to Mrs. Martin.

The evidence, however, took a somewhat wider range and I will discuss the case from the wider standpoint.

It appears that in 1887 Kate B. Carter purchased a tract of land having a frontage on Hillside avenue of about two hundred and eighty-five feet and a depth of two hundred and sixty feet. She conveyed lots on Hillside avenue, out of this tract, to different grantees, and in the several conveyances imposed, among others, the restriction above mentioned. In every instance of a conveyance of lots on Hillside avenue this restriction has been violated. All the lots have been built upon, and some part of each building is three or more feet over the line. The complainant’s buildings are four feet and a fraction over it. All the buildings have been put up at least two years ago and some of them longer. The complainant erected hers two years and a half ago. If, therefore, Mrs. Carter had a general building scheme it has been disregarded, and, as far as appears, without objection on her part.

The question is whether under these circumstances the complainant is able to give a marketable title, that is, a title that will not expose the purchaser to the hazards of a litigation in regard to it. Lippincott v. Wikoff, 54 N. J. Eq. (9 Dick.) 107; Fahy v. Cavanagh, 59 N. J. Eq. (14 Dick.) 278; Barger v. Gery, 64. N. J. Eq. (19 Dick.) 263. The doubt about the title must be a rational doubt (Barger v. Gery, supra), or, as it has been otherwise characterized, “real, and not fanciful.” Methodist Episcopal Church v. Roberson, 68 N. J. Eq. (2 Robb.) 433. There must, it is said, be some debatable grounds on which the objection to the title can be justified. Vreeland v. Blauvelt, 23 N. J. Eq. (8 C. E. Gr.) 483. Thus tested it would seem to be without substance. There is no doubtful question of law or fact present. The only conceivable litigation would be either an action at law for damages or a bill for mandatory injunction. The action at law could only be brought against complainant, for it was she, and she only, who broke the covenant. On a bill for mandatory injunction to protect restrictive building covenants, courts of equity have laid down two rules and applied them with much strictness: (1) the application must be promptly made (Lippincott v. Wikoff, supra; Leaver v. Gorman, 67 Atl. Rep. 111; Sayers v. Collyer, 28 Ch. Div. 103); (2) the common scheme of building must have been actually preserved. Peek v. Matthews, L. R. 3 Eq. 515; Ocean City Assn. v. Headley, 62 N. J. Eq. (17 Dick.) 322. Mrs. Carter would be met by both of these objections should she file a bill and, as far as I can see, they would be unanswerable. The case differs in an important particular from Fahy v. Cavanagh, supra, where Vice-Chancellor Pitney refused relief on the ground that the proof of a fact material to complainant’s title, viz., the execution of a will defectively witnessed might be made difficult, if not impossible, by lapse of time. Here lapse of time would only make it still more difficult for Mrs. Carter to succeed. And if she could not succeed the case of the adjoining property owners is still more hopeless. Not only have they stood by while complainant was building, but they have themselves violated the same covenant. Sutcliffe v. Eisele, 62 N. J. Eq. (17 Dick.) 222.

I think, therefore, that the possibility of injury is so remote that it does not afford any just ground for refusing to perform the agreement.


text:
    Robert Jourdan v. Walter Burstow et al.
    [Decided October 14th, 1909.]
    1. An agreement to convey property in satisfaction of an embezzlement, in consideration of a promise not to prosecute for the crime, is illegal.
    2. Where property is conveyed in satisfaction of an embezzlement which „ has been committed, in consideration of a promise not to prosecute before the time, such property cannot be recovered back.

      Mr. Henry Pomerelme, for the complainant.

      Mr. Adrian Rilcer, for the defendants.
   Stevens, Y. C.

I have examined the authorities cited by complainant’s counsel and such others as have been accessible, and I cannot find any precedent for a recovery such as is sought in this case. The decided weight of the evidence, feo far as the facts are concerned, is with the defendants. It goes to sustain the charge of embezzlement and disproves the duress. The only question is the legal one: Whether a man who has actually conveyed property in satisfaction of an embezzlement, admitted to have been committed, can recover it back simply on the ground that the written agreement which he entered into with his employers to make restitution, contains a clause against prosecution. Such an agreement is plainly illegal, and its performance could not be compelled. But if actually performed the grantor suing to recover back his property stands in the same situation that the grantee would have stood in had he sued on the agreement. He is in pari delicto and the maxim is, “in pari delicto, potior est conditio possidentis.” In the note to Collins v. Blantern, 1 8m. Lead. Gas. (■6th Am. ed.) *507, the rule is thus stated: “The law will in general leave all wlio share in the guilt of an illegal or immoral transaction where it finds them and will neither lend its aid to enforce the contract while executory nor to rescind it and recover back the consideration when executed. The maxim 'nemo allegans suam lurpiiudinem audiendus3 applies in such cases with full force.”

In Meech v. Lee, 82 Mich. 274, the case principally relied upon by complainant’s counsel, and in Williams v. Bayley, L. R. I. H. L. 200, as well as in some other like cases, affirmative relief was indeed given, but those cases differ from that in hand in two important respects—first, the transaction was, in a certain sense, in fieri. The security had been given but the money had not been paid; second, the person asking relief was not the wrongdoer, under a legal and moral obligation to make restitution (Smillie v. Smith, 32 N. J. Eq. (5 Stew.) 51), but a third person who had, without any consideration moving, to himself, and under an influence that was characterized as undue, undertaken the burden of the demand.

The case of Haynes v. Rudd, 83 N. Y. 251, reported again in 102 N. Y. 372, is very much'in point. In an action to recover back moneys paid by plaintiff in payment of a promissory note given by him to defendant and transferred to a Iona fide holder before maturity, the complaint alleged that it was given to compound a claim made by defendant that plaintiff’s son had stolen money from him and that it was extorted by threats of public charges against that son. The case coming up on exceptions to the judge’s charge, it was held that there could be no recovery if the agreement to compound the felony was part of the contract; that the parties were in pari delicto. Here the doctrine of par delictum was applied as against a third person. A fortioñ must it be applied as against the alleged embezzler himself.

Watson v. Murray, 23 N. J. Eq. (8 C. E. Gr.) 257; Gregory v. Wilson, 36 N. J. Law (7 Vr.) 316, are cases which, while they differ in their circumstances from the present, illustrate the doctrine that the courts of this state will not help the plaintiff to recover money where the recovery is sought upon the footing of an agreement contrary to public policy. The bill should be dismissed, with costs.


author: Stevenson, Y. C.

text:
    The Mayor and Common Council of the Borough of South Amboy and The Board of Chosen Freeholders of the County of Middlesex v. The Pennsylvania Railroad Company and The United New Jersey Railroad and Canal Company.
    [Decided June 1st, 1909.]
    1. Where a railroad company was required to maintain a proper passageway under its tracks at a crossing, a bill to compel the railroad company to enlarge such passage to provide for increased traffic, &c., must be regarded as a bill, not to abate a nuisance in a public highway or for the determination of easements, but as only invoking the chancery jurisdiction conferred by the General Railroad act (P. L. 1908 p. 660 § 29), providing that, when a railroad company shall not properly construct and maintain crossings of highways by its railroad tracks as required by law, the township or municipality may proceed in equity to compel specific performance of the duties imposed by law on the company in that respect, &c.
    2. The extent of user ordinarily determin.es the minimum width of a highway; the extent of user not being limited, however, to -[he track formed by the wheels of vehicles.
    3. Where the public acquires a right of travel over the land of another, the public easement includes the use of such adjacent lands as may be needed for ordinary repairs and improvements.
    4. In order that a railroad "crossing” shall exist, the railroad and the highway must intersect each other in some degree, or at least one must be superimposed on the other.
    5. The charter of a railroad company (P. L. 1829-80 p. 88 § 15) required it to construct and keep in repair good and sufficient bridges or passages over the railroad or roads where any public or other road shall cross the same, so that the passage of carriages, horses, and cattle on the roads shall not be prevented thereby, &c. General Railroad act (P. L. 1908 p. 659 § 26) makes it the duty of every railroad company to construct and keep in repair sufficient passages over, under, and across the company’s right of way so that public travel shall not be impeded, &c., provided that section shall not enlarge the duty imposed by charter on any railroad incorporated prior to 1873.—Held, that section 26 did not enlarge the charter duties of the railroad company under which it was not required to construct an underneath crossing to the full width of the street, but was only required to construct a “passage” sufficiently large for the accommodation of the existing needs of the public.

      6. The legislature, in the exercise of police power, may increase the burdens on railway companies in respect to highway crossings.
    7. Where a railroad was not constructed prior to April 21st, 1873, and its charter required it to construct and keep in repair sufficient bridges or passages over its railroad where any public or other road shall cross the same, the chancery court, in a statutory action authorized by the Railroad law (P. L. 1903 p. 660 § 29), had power to compel the company to construct a good and sufficient passage under its road for the accommodation of travel on a street with which the road had provided an inadequate undercrossing.
    8. Where a railroad company’s charter required it to construct good and sufficient bridges or passages “over” its railroad or roads where any public highway shall cross the same, the word “over” was used in its ordinary sense to mean “above.”
    9. Where a railroad company was required to construct and maintain an underpassage where a street crossed its right of way for a distance of two hundred and sixty-five feet covered by seventeen tracks, the railroad company was required to build and maintain a passage thirty-three feet wide and light the same either by suitable openings or artificial light, to pave the same to conform to the street, and to keep it properly drained.
    10. Notice to a railroad company to construct and repair an under-passage or crossing is not a condition to the maintenance of a suit to compel specific performance of the company’s duty to do so under Railroad law (P. L. 1903 p. 660 § 29), authorizing the township or municipality by suit in equity to compel specific performance of the duties imposed on the railroad company with reference thereto by law.
    11. Under Railroad law (P. L. 1903 p. 660 § 29), authorizing the township or municipality to proceed in equity to compel specific performance of a railroad company’s duty to construct and maintain proper crossings, the county was neither an improper nor unnecessary party complainant to a suit by the common council of a borough for such relief.
    Einal hearing on bill, answer and proofs taken in open court.

      Mr. Frederic M. P. Pearse and Mr. George S. Silzer, for the complainants.

      Mr. Alan H. Strong, for the defendants.
   Stevenson, Y. C.

The object of the bill is to effect a change of conditions of inconvenience and danger which are alleged to exist in the borough of South Amboy at that part of the public highway known as Eidgefield avenue, where the railroad of the defendants crosses the same. The bill purports to exhibit the statutory equitable action to compel the specific performance of the duties imposed by law upon 'the defendants with respect to this crossing provided by section 29 of the General Bailroad act of 1903. P. L. 1&08 p. 660.

The important physical facts which constitute the grievances which the complainants assert on behalf of the traveling public are as follows:

The defendant the Pennsylvania Eailroad Company, which is operating the railroad constructed under the charter of the Camden and Amboy Company, and its predecessors in title and possession, have gradually multiplied parallel tracks extending across Eidgefield avenue until there are seventeen in number, and the section of the highway covered over by these tracks has come to measure two hundred and sixty-five feet. The Camden and Amboy charter was passed in the year 1830 (P. L. 1880 p. 88), so that the first track must have been constructed at some time after that date. Por a period following this first construction the proofs show that a passageway over the railroad was made and maintained by the operating company, which passageway was sufficiently wide to enable two vehicles going in opposite directions to pass each other at every point. At a later period, whether after raising the grade of the track of the railway company or not does not distinctly appear, the highway was passed through the embankment of the company and under the rails of its track. The railway company thereupon, at first, perhaps by means of timber, and soon afterwards, at any rate, by means of stone walls or abutments, carried its rails over the highway. The passageway thus provided for the public seems to have been reasonably sufficient for all the purposes of travel during that early period. I do not think that it is necessary to go back of this condition which was established and apparently accepted by the traveling public about fifty years ago or more. The stone walls were fourteen feet apart, and perhaps twenty-five or thirty feet in length. They encroached upon the highway to an extent hereinafter considered. The space between the rails was not planked over. There is no indication that the passageway was inconvenient from lack of light or adequate drainage. The character of the adjacent lands and the infrequent use of the highway probably made the passageway amply sufficient for all the purposes of travel in that day.

One ancient witness testified that vehicles did not undertake to pass each other between these walls, but that the driver of a vehicle could readily look ahead through the passageway, and if two vehicles happened to meet at the passageway, which no doubt was an infrequent occurrence, one would wait for the other. From the condition of reasonable convenience and safety above described, a steady change in the direction of inconvenience and danger lias been caused by the increase of travel on the road and by the operations of the railway company in widening its embankment and adding line after line of parallel tracks. The stone walls have been extended in order to sustain these lines of rails. When the walls had attained a considerable distance it appears to have become evident to the operators of the railway that some provision must be made for permitting vehicles to pass each other in what had become a tunnel. The railway company had not only extended the walls but had laid planking between the rails so that the highway passed through a rectangular tube of which the bottom apparently was the roadbed, the sides were the parallel stone walls, and the top consisted of the girders upon which the rails were laid and the planking which closed the intervening space. A turnout, therefore, was constructed, with a row of pillars or supports in the centre, the stone walls being made to recede from each other in a curved line. The stone walls, however, at the end of the turnout were brought together to about the same distance from each other as that which separated them at the start, viz., about fourteen feet. When the last tracks at the extreme southeasterly side of the right of way of the railroad company were laid, it seemed to be recognized by the operators of the railroad that an indefinite extension of this huge dark pipe through which the highway ran would not be advisable, and accordingly the side walls were made to recede, forming a flare. Along one side of the entire passageway runs a sidewalk two feet and five inches wide, leaving only eleven feet and seven inches for the roadway for vehicles.

The grade of the highway when the railroad was constructed . across it ascended toward the east from a point at or near the location of the first track or tracks. As the tracks were multiplied and the passageway or tunnel under them was extended toward the east, the grade of the highway was changed presumably because of the necessity for maintaining all the railroad tracks on substantially one plane or grade. The result was to lower the grade of the highway at least for a considerable distance under some, and probably many, of the more easterly tracks, and to make the ascent up a hill from the easterly end of the crossing more steep. There is direct testimony to this effect.

When the railroad track or tracks were first carried over the highway, it may be that the natural ancient grade of the highway was not in any way changed. It may also be that the girders or other supports upon which the rails were laid were high enough above the grade of the 'highway to afford sufficient headway for all sorts of vehicles which were customarily used in that locality. However this may be, the evidence, I think, establishes, beyond all question, that under the conditions which now exist and which may have been caused by the construction of these parallel railway tracks in recent times, the highway now has insufficient headway for the convenient passage of the higher kinds of vehicles.

It is unnecessary more particularly to describe the conditions at this crossing of the defendant’s railway over Bidgefield avenue as they exist to-day. These conditions create a constant inconvenience and danger to the public, as has been amply proved. The passageway is so dark that the borough of South Amboy has assumed the burden of lighting the same with artificial lights. In times of heavy rains large quantities of water and sand are carried down into one of the open ends of the tunnel and render for a time the roadway impassable, there being apparently no provision for lateral drainage through the walls. After the water has sunk into the soil the sand remains obstructing the highway and the public authorities are put to expense in removing the same.

The theory of the bill is that the duty of changing these inconvenient and dangerous conditions is imposed by law upon the • defendant railway corporation, and that the court of chancery, in the exercise of the jurisdiction created by section 29 of the General Railroad act, can compel the specific performance of this duty.

It is admitted that by virtue of the consolidation which created the defendant, the United New Jersey Railroad and Canal Company, that company became charged with all the duties of the Camden and Amboy Company under its charter, and that by virtue of the lease of the United Railroad and Canal Company to the other defendant, the Pennsylvania Railroad Company, which lease was ratified by the legislature of New Jersey (P. L. 187& p. 1€98)} the duties imposed on the United New Jersey Railroad and Canal Company with reference to the crossing of highways were charged upon the Pennsylvania Railroad Company. The lease which was thus ratified has not been put in evidence, but neither the answer nor'the proofs show that the duties of the lessor company with respect to the crossing of Ridgefield avenue were transferred to the lessee company so as to relieve the lessor company therefrom. Under the pleadings and proofs the two defendants must be regarded as charged with all the duties with respect to this crossing which would be imposed upon the Camden and Amboy Company if that corporation were now operating this road under its charter.

The bill in this case, in my opinion, must be regarded as invoking only the jurisdiction conferred upon the court of chancery by section 29 of the General Railroad act. It is not a bill to have conflicting easements regulated or to have a nuisance in a public highway abated by an injunction. As the bill is framed and as the case has been tried the only proper decree in favor of the complainant must be a decree adjudging that the defendants have “not properly constructed and maintained” the "crossing” above described and directing the “specific performance of the duties imposed by law” upon the defendants “with respect to the construction, maintenance and repair” of said “crossing.” Incidentally what is now a nuisauce may he removed and the use of land subjected to conflicting easements may be in a measure regulated. A bill to abate a nuisance might accomplish its purpose and yet leave the most important duties of the defendants with respect to the highway crossing entirely undefined and unenforced. A bill to regulate conflicting easements might practically create new duties and exhibit a radically different cause of action from that which is vested in a township or municipality by section 29 of the General Eailroad act. I think, therefore, that we may disregard the plausible arguments of counsel for the complainants, based upon the assumption that in this case the court of chancery may exercise its jurisdiction relating to nuisances or its jurisdiction to regulate under certain conditions the use of conflicting easements. The bill of complaint most amply exhibits the statutory action created by the above-cited statute, and that statutory action affords a complete remedy for all the grievances set forth in the bill.

1. The first question to be determined relates to the nature and legal status of this public highway known as Eidgefield avenue. The proofs show that prior to the construction of the first track of the Camden and Amboy Eailroad Company this highway existed leading from South Amboy in a westerly direction through a sparsely settled territory and terminating at a certain dock or docks on the Earitan river. The road now leads to a bridge which has recently been erected across the river and forms a direct line of communication between Perth Amboy and South Amboy. Many buildings have been erected on the westerly side of the railway, where formerly there were open fields and unenclosed lands. The volume of travel over Eidgefield avenue In consequence of these changes and improvements has very greatly increased.

An effort was made to show that a road was laid out in 1866, which coincided with Eidgefield avenue at this railway crossing, but I think the proof entirely failed. We have to deal with the highway as it existed by user or presumed dedication when the railroad tracks were constructed over it.

A large amount of testimony has been taken with a view to establishing the width of Eidgefield avenue. Counsel for complainants argue that the law establishes a presumption in the case of these ancient roads that they were laid out by virtue of some former statute and therefore must be deemed to be of the statutory width. The case cited to sustain this view is Ward v. Folly, 5 N. J. Law (2 South.) 554, decided by the supreme court through Mr. Chief-Justice Kirkpatrick, in 1819. This case apparently has only been cited once, and then in a dissenting opinion filed by Mr. Justice Valentine in Vantilburgh v. Shann (1853), 24 N. J. Law (4 Zab.) 740, 748. The statutes regulating the laying out of roads are then cited under which Ridgefield avenue might have been anciently laid out, and the insistment is made that Ridgefield avenue must be deemed to be a laid road “not more than four nor less than two rods wide.”

My impression is that the peculiar doctrine laid down in Ward v. Folly, which would seem to radically alter our law in regard to the origin of highways in use for more than twenty years, has been ignored, if not practically overruled, in some reported cases, and has been utterly disregarded in large numbers of civil and criminal cases tried at the circuits. Counsel for the defendants points out that Chief-Justice Kirkpatrick based his decision upon the ground that the road in question before him was traced back to a time prior to the year 1760, when no road books were required by law to be kept in the county clerk’s office. It is argued that if the doctrine of Ward v. Folly is still sound law in New Jersey, it should be strictly confined to cases where the highway is shown to have been in existence at a time when no record was required by law to be kept of the proceedings by which it was laid. There is force, I think, in this argument. Certainly in this case Ridgefield avenue was not shown to have been in existence until many years after 1760.

I am not obliged under the view that I take of this present case to ascertain and establish anything more than the minimum width of Ridgefield avenue at this place of crossing. It is safer, it seems to me, to apply to the ascertainment of the minimum width of Ridgefield avenue the rule which has generally been recognized in England and throughout the United States according to which the extent of the user determines the width. 22 Am. & Eng. Encycl. L. (2d ed.) 1224; Scheimer v. Price, 65 Mich. 638; Talmage v. Huntting, 29 N. Y. 447; People v. Judges, &c., 24 Wend. 491; Morse v. Ranno, 32 Vt. 600, 607; Savings Bank v. Stockwell, 84 Mich. 586; Harlow v. Huniston, 6 Cow. 189; Marchand v. Town of Maple Grove, 48 Minn. 271; Davis v. City of Clinton, 58 Iowa 389.

The authorities agree that fences and fence lines often determine the width of a highway, hut there is no proof in this case of the existence of fences defining the limits of Eidgefield avenue at this crossing-place -when the railroad was constructed over sixty years ago.

The great weight of authority is opposed to the notion that the beaten track formed by the ■wheels of vehicles indicates the extent of the user in the case of these old country roads often called drift roads, which run through rough and unfenced lands. Vehicles pass over these roads sometimes at very long intervals. They seldom meet, but when they do meet, they may meet anywhere. The use of the road necessarily involves the passing of vehicles by each other, and the necessity for such passage may occur at any point. See Hannum v. Inhabitants of Belchertown, 36 Mass. 311, 312. When the public acquire such a right of travel and the landowners submit to the enjoyment of such right, the easement has been held to include the use of “such adjacent lands as may be needed for ordinary repairs and improvements.” Marchand v. Town of Maple Grove (1892), 48 Minn. 271. The owners of lands who permit a highway to be established two or three miles or more in length must be presumed to know that at any time a change of conditions may occur such as actually’ happened in this case which will increase the use of the highway and multiply the number of vehicles passing hourly or daily over the same a hundred fold or more. The requirements for keeping the roadbed of Eidgefield avenue in proper condition for use today by the carriages and heavy automobiles and large furniture vans which now travel over it may be very different from the requirements of travel over the same highway seventy-five years ago, when the passage of two. or three wagons per day may have measured the average use. Macadamizing the surface of the road may involve building it up and draining it by means of side ditches. The use of sufficient land on the side of the track for the purposes indicated, it seems to me, is plainly within the public easement acquired by dedication or user.

Without undertaking to discuss the mass of testimony given by ancient witnesses and presented by documents, I have reached the conclusion that Ridgefield avenue at this place of crossing must be deemed to have been in existence when the railroad was built with a width of at least two rods. It happens by accident that a consideration of the space necessary for two large loaded vehicles to conveniently pass each other with sufficient space on each side of the roadbed to secure its maintenance in good condition, has led me to just about this figure, thirty-three feet. The finding therefore has the very great advantage of being in accordance with the argument of counsel for the complainant based upon the doctrine of Ward v. Folly, and also of being sustained by some of the authorities which support a presumption that a road whose origin is in user or dedication has the “usual width” of the roads in the same locality. Hull v. Richmond, 2 Woodb. & M. 337; Furniss v. Furniss, 29 Pa. St. 15.

It may be that a close examination of the testimony would give support to the theory that Ridgefield avenue was established by user of a greater width than thirty-three feet on the easterly side of the original railroad track where the parallel lines of the track were constructed after the year 1885. This matter, however, may be left precisely as I have left the question of the applicability of the rule laid down in Ward v. Folly. The whole of the highway or the easterly portion of it may in fact be found "to have a width of forty-nine and a half feet or of fifty feet, both of which dimensions have been referred to in the argument without affecting the character of the decree to be made in this case for a reason which will hereafter appear.

2. The next question involves the ascertainment of the duties which the defendants owe to the public, “with respect to the construction, maintenance and repair” of this crossing.

•Counsel for the respective parties in this case agree that the doctrine laid down by Chancellor McGill, I think by way of ’ dictum when the case is carefully analyzed, in the case of Raritan Township v. Port Reading Co., 49 N. J. Eq. (4 Dick.) 11, applies to this case, and that the result is that when the width of the highway has been ascertained the defendants must span this entire width so as to leave the same entirely unobstructed. The view so expressed by Chancellor McGill cannot, I think, be deemed to have received support in the reference to it made by Mr. Chief-Justice Gummere, in the case of Borough of Metuchen v. Pennsylvania Railroad Co., 73 N. J. Eq. (3 Buch.) 359. It certainly is a somewhat strange result of our law if, in case of the crossing at Metuchen, the Pennsylvania Eailroad Company, in case they had built their embankment a few feet higher, would have been obliged io span the entire highway, which was sixty-six feet wide, whereas by keeping their rails a little lower and lowering the gra.de of the highway a span of forty-five feet was deemed adequate. If a railway crosses a highway in a deep cut fifty feet below the original level of the ground where the highway runs, the construction and maintenance of a bridge across the cut only half the width of the highway may be deemed a full performance of the statutory duty imposed upon the railway company. A railway which runs through a mountain in a tunnel does not “cross” the public roads which lie on the surface of the mountain a quarter of a mile perhaps above the railway tracks. In order to a case of “crossing” it seems to me the two things, the highway and the railroad, must intersect each other in some degree or at least one must be superimposed upon the other. In the present case the overlapping or intersection of the highway and the railroad is established beyond all doubt. The original public easement of travel over the surface of the road, as the road lay even after the first two railroad tracks had been constructed across it, has been interfered with, and to a large extent destroyed by the removal of earth and the consequent lowering of the grade of the road as track after track was constructed above and across it. If there was sufficient headway for the purposes of travel fifty or seventy-five years ago the proofs show that such is not the case to-day; that a large and high vehicle is liable to find a passage through the tunnel impossible. The natural drainage of the highway has been cut off by the extension of these apparently solid stone walls, while changes in the formation of the ground at and near the easterly end of the tunnel necessarily caused large quantities of water and sand at times to pass into the tunnel and obstruct the same. A suitable pavement for the roadbed which is reasonably necessary for the purposes of modern travel has not been supplied. Automobiles and other heavy vehicles are left to straggle their way through the loose soil of the natural roadbed precisely as a farm wagon must have done several generations ago. The light necessary to the convenient use of the highway has been cut off by this extraordinary extension of walls and the tracks, girders and planking extending from one wall to the other.

We are not therefore dealing with a case the facts of which bring it within the operation of the rule laid down by Chancellor McGill in the Pori Beading Case; we have in hand a case which, in my judgment, in every essential feature, is precisely the same as the Metuchen Case. The defendants have not built and do not maintain their railroad over Ridgefield avenue “so high above the level thereof as not to interfere with the public travel thereon” (71 N. J. Eq. (1 Buch.) 404; they are maintaining their railroad so as to malee Ridgefield avenue cross the same—so as to make railroad and road “cross” each other; they have thus taken a large part of what the public enjoyed in the exercise of the public easement of travel over Ridgefield avenue, and hence the statutory duty rests upon them to provide a good and sufficient “passage” as a substitute for what they have taken. The area occupied by the railroad, i. e., the structure, intersects the area which is subjected to the public easement of travel over Ridgefield avenue. What the defendants are obliged to provide is not a clear span over the whole of this highway which they are crossing, but the substitute provided by law. In other words, Ridgefield avenue does not exist under these railway tracks. What exists under the tracks is a “passage” which the defendants have undertaken to supply in performance of their statutory duty, and this passage is not in respect of the characteristics above indicated such a good and sufficient passage as the defendants are by law required to construct and maintain.

Counsel for the respective parties agree that the only statute which prescribes the duties of the defendants which this suit is brought to specifically enforce is section 15 of the charter of the Camden and Amboy Railway' Company, which is as follows:

“That it shall be the duty of the said company to construct and keep in repair good and sufficient bridges or passages over the said railroad or roads where any public or other road shall cross the same; so that the passage of carriages, horses and cattle on said roads shall not be prevented thereby, and also where the said road shall intersect the farm or lands of any individual to provide and keep in repair suitable wagon-ways so that the owners and others may pass over the same.” P. L. 1880 p. 88 § 15.

In my opinion, section 26 oil the General Eailroad act of 1903 also is applicable to this crossing and imposes duties with respect to it upon the defendants.

This section reads as follows:

“It shall be the duty of every railroad company owning, leasing or controlling any right of way for a railroad within this state, to construct and keep in repair good and sufficient bridges and passages over, under and across the railroad or right of way where any public or other road, street or avenue now or hereafter laid, shall cross the same, so that public travel on the said road shall not be impeded thereby, and said bridges and passages shall be of such width and character as shall be suitable to the locality in which the same are situated; and also where said railroad shall intersect any farm or land of any individual, to provide and keep in repair suitable and convenient wagon-ways over, under and across said railroad, and to construct and maintain suitable and proper cattle-guards at all road crossings; provided, that this section shall not enlarge the duty imposed by its charter upon any railroad company incorporated by special act and whose railroad was constructed before the second day of April, eighteen hundred and seventy-three.”

It is settled law, I think, that it is competent for the legislature in. the exercise of the police power of the state to increase the burdens upon railway companies in respect to highway crossings. Morris and Essex Railroad Co. v. Orange, 63 N. J. Law (34 Vr.) 252; Cooley Const. Lim. (6th ed.) 714, and cases cited; 22 Am. & Eng. Encycl. L. (2d ed.) 933, 934; 6 Am. & Eng. Encycl. L. 364.

The law, however, contains in the proviso a limitation which counsel for the defendants claims makes the whole section inapplicable to this particular crossing. I cannot adopt this view.

In the first place, section 26 does not, in my opinion, in the slightest degree, “enlarge” the duties imposed upon the defendants by the charter of the Camden and Amboy Eailroad Company. The mandate that the bridge or passage “shall be of such width and character as shall be suitable to the locality in which the same are situated,” seems to be an accurate definition of the duty in respect of bridges and passages prescribed by section 15 of the Camden-and Amboy charter. If such were not the case, however, the result would not be to render the whole section inapplicable to this case, but merely to save the defendants from being compelled to construct and keep in repair a more expensive passage under the new law than the one which they would be obliged to construct and keep in repair under the old law.

It certainly is no enlargement of the duties of the defendants to give them an option which they have under this new law to provide a good and sufficient passage for Ridgefield avenue either under, over or across their railroad, whereas under the Camden and Amboy charter, as counsel for the defendants most strenuously insists, the duty of the defendants is to maintain a suitable passage for Ridgefield avenue over this enormous barrier which the defendants have constructed and occupy with their tracks. Without undertaking to express any final opinion upon the matter, it seems to be apparent that the performance of the duty of the defendants under section 15 of the Camden and Amboy charter might require them to erect and maintain a lofty viaduct thirty or forty feet above the level of the ground on either side of the defendants’ embankment and extending with suitable approaches for a distance of perhaps five or six hundred feet so as to span the entire seventeen tracks with the embankment upon which they are laid. The indications from the present volume of travel along Ridgefield avenue and the character of the defendants’ use of its seventeen tracks are, that a grade crossing would be inadequate for reasons not only of convenience but safety.

In the second place, without construing the proviso of section 26 very strictly, which might be deemed proper in view of the character of this legislation, it seems clear that the railroad in its entirety was not “constructed before the second day of April, 1873.” On the contrary, by far the greater part of this obstruction to travel, tills “crossing” of Ridgefield avenue, was effected by the defendants when they multiplied their tracks for the purposes of their coal dumps about the year 1885 and thereafter. It is evident that it is impracticable to treat differently the portion of this immense barrier which was constructed prior to 1873 from the portion which was built after that date. There cannot be a passage under one portion and over the other.

Surely, it cannot be seriously argued that section 26 enlarges the duty imposed upon the defendants with respect to the maintenance of a suitable passage at the Eidgefield avenue crossing when it gives them an option to construct such passage under their railroad, if they should deem it more convenient and less expensive to provide such passage rather than the one over their railroad prescribed by their charter. Row, the defendants having, as their counsel argues, without warrant of law, provided a passage under their railroad in lieu of the passage over their railroad which their charter prescribed, have gone on for years maintaining this passage under their railroad after it had been legalized—after the new statute had given them the option to construct and maintain this very thing in discharge of their duty.

It seems to me that the true, conclusion is that this court has full power in the statutory action prescribed by section 29 to compel the defendants to construct a good and' sufficient passage under tlioir railroad for the accommodation of travel on Eidgefield avenue for reasons above indicated, viz., (1) because the railroad, which makes the obstruction, was not constructed before April 2d, 1873, and (2) because the passage, which the decree in this ease will prescribe, does not “enlarge” the duty imposed upon the defendants by section 15 of the Camden and Amboy charter. If there is any possible error in the view aboye set forth, the fact still remains that the defendants having full power to elect which of three kinds of passages they would construct and keep in repair at the Eidgefield avenue crossing, have for years elected to maintain in the discharge of that duty a passage under their tracks. They could not elect to maintain any passage under, over or across their railroad which was not “good and sufficient” within the meaning of their charter. The decree in this case will merely carry out what must be presumed to have been the election of the defendants and compel the defendants to perform specifically the very duty which they have elected to assume and discharge.

It must, I think, he conceded that counsel for the defendants is correct in his insistment that section 15 of the Camden and Amboy charter can be satisfied only by the maintenance of a passage for Ridgefield avenue over the railroad tracks so as to have the roadbed on the same grade as the railway track or at same convenient distance above it. The dictionaries, the decided cases and the verbiage of all the railroad charters and railroad laws which have been passed in Few Jersey sustain this conclusion. The word "over,” when used to describe or define the relation in space of one object to another, seems to have a definite meaning. 7 New Eng. Dic. 285; Commonivealth v. Warwick, 185 Pa. 623; Central Vl. Co. v. Royalton, 58 Vl. 234; Illinois Central Railroad Co. v. Chicago, 141 Ill. 536, 589, 599; Newbury Port Turnpike Co. v. Eastern Railroad Co., 40 Mass. 326, 328; Boston and Maine Railroad Co. v. City of Lawrence, 84 Mass. 167, 109.

The Camden and Amboy charter was the first railroad charter passed in Few Jersey, and the only models in this state which the draftsmen of the act had before them were the charters of canal companies where provision was made for bridges and where no underground passages for highways were taken into consideration for manifest reasons. The charters of the West Jersey Railroad and Transportation Company passed the next year after the Camden and Amboy charter (P. L. 1831 p. 100 § 14), and of the Delaware and Jobstown Rail or McAdamized Road Company passed in 1833 (P. L. 1833 p. 80 § 10), and the supplement to the Camden and Amboy charter passed in 1835 (P. L. 1885 p. 58 § 2), seem to exhibit the only other instances in which the word "over” alone is used in the section which deals with passages and bridges for highway's. The attention of railroad men must have been very soon called to the fact that oftentimes it was more convenient for the railroad company and for the traveling public to have the passage for the highway constructed through an embankment and underneath the railway tracks. Accordingly, while section 15 of the Camden and Amboy charter was copied over and over again, instead of the word "over,” we find the words "under and over,” and "under or over,” and in the General Eailroad act above quoted, the phraseology is “over, under and across.”

If the ingenious argument o£ counsel for the defendants should be accepted and the bill of complaint in this case should be dismissed, it ■would seem that a very extraordinary and disastrous consequence to the defendants might thereupon follow. They might be obliged to span the entire highway for the full width at every point which it might be found to have at such a height as to leave the entire easement of travel absolutely unaffected, and thus eliminate the “crossing” or to erect and maintain at great expense the enormous viaduct above referred to.

We now reach the question what at the present day, with the present requirements of public travel along Eidgefield avenue in vdew, must be the characteristics of a passage under the defendants’ railroad which can be deemed “'good and sufficient,” so that public traA'el shall not be prevented or impeded. It is hardly necessary to point out that no distinction for the purposes of this case can be drawn between the preventing and impeding of travel. This lofty bank on which these seventeen tracks are constructed absolutely shuts off all travel until a passage of some kind is supplied. It is also unnecessary to speculate as to whether a passage could be deemed good and sufficient which would carry this tide of travel over these seventeen tracks upon the same grade. It may be presumed that the defendants will not urge that the decree should compel the substitution of the sort of a viaduct above described for any passage under the tracks which the decree could prescribe.

The following are the characteristics of the passage which the decree will compel the defendants to “construct and keep in repair

(1) The Avails must be separated so as to leave thirty-three feet in the clear. No testimony has been taken and no argument has been addressed to the court in regard to the location of the middle line of Eidgefield avenue. As the evidence stands it will be presumed that the middle line is the middle line between the two walls. If such is not the case, or if for any reasons which have not been discussed the defendants may properly leave one wall standing and remove the other the required distance, further testimony may be taken and the location of the passageway with reference to the centre line of the highway be established before the settlement of the decree.

At this point the reason for limiting the investigation of the width of Ridgefield avenue to what has been referred to as its minimum width may well be considered.

The exact question before the court in this ease is not how wide is Ridgefield avenue at this place of crossing; the precise question is how wide a “passage” should the defendants be obliged to provide for use in connection with Ridgefield avenue. If there were grounds for questioning whether or not the defendants are spanning the entire highway so as to leave the public easement of travel unaffected and thus avoid any “crossing” within the meaning of our statute, it would then be necessary to determine the full width of Ridgefield avenue. It seems to me, as I have already intimated, that in such a case the railroad and the highway no more cross each other than when the railroad passes through a tunnel in the solid rock half a mile below the highway. To avoid a “crossing” and intersection or overlapping of easements or rights, the entire highway of course must be spanned. It does not, however, follow that there is no crossing where the railroad spans the entire highway with a stone tunnel a mile long which greatly interferes with the enjoyment of the public easement of travel by cutting off the light and subjecting the traveling public to inconvenience and danger from extraordinary artificial conditions thus created. With such a case, however, we have nothing now to do. The point to be indicated distinctly is that even if Ridgefield avenue was wider than thirty-three feet at the original place of crossing when the railroad was first built, and even if Ridgefield avenue was wider than thirty-three feet in 1885, in that portion where the additional tracks were then laid across it, the conclusion which I have reached is that a “passage” thirty-three feet wide is at present adequate as a substitute for the entire highway for use on the part of the public whatever the width of the highway at any point may be. The Metuchen Oase here is a guide, and the remarks of Chief-Justice Gummere in relation to the width of the most crowded streets in Few York and Philadelphia may well be referred to.

It should be borne in mind that the duty of the defendants is enlarged from month to month and year to year to meet all changes of conditions. Central Railroad v. State, 32 N. J. Law (8 Vr.) 221. The court cannot anticipate changes which may or may not occur. The court deals with the duty of the defendants to-day. It is for the defendants to consider whether or not it would be wise and prudent while taking down this immense structure and erecting another in its place to make it somewhat wider than thirty-three feet which width the court under present conditions deems adequate. The laying out of a wider highway, which may be done at any time, will raise a number of questions greatly affecting the liabilities of the defendants to the public which have not been considered in this case. The language of the Camden and Amboy charter is, “where any public or other road shall cross the same;” and the language of section 26 of the General Eailroad act is, “where any public or other road, street or avenue now or hereafter laid shall cross the same.” Comparing this phraseology with that employed in the charter of the Morris Canal and Banking Company, some of the questions relating to the liability of the defendants in case Eidgefield avenue should be widened will at once appear. See Morris Canal Co. v. State, 24 N. J. Law (4 Zab.) 62; Paterson and Newark Railroad Co. v. Newark, 61 N. J. Law (32 Vr.) 80.

There is no testimony in the cause which will enable the court to specify the height of the passage to be constructed—the headway which must be provided. Perhaps the evidence indicates that a slight increase in the headway either by the elevation of the tracks or the depression of tiie passage will meet all reasonable requirements. Additional testimony may be taken at the proper time in regard to this matter if it cannot be adjusted by agreement. There probably is a customary height for such passages which will practically control this case.

(2) The defendants must provide light for their passage; they have no right to block up the highway for two hundred and sixty-five feet and then provide for the accommodation of the traveling public a dark tunnel. The authorities of South Amboy should he relieved from the duty which they have assumed of providing artificial light for this passage. Of course, whether the defendants provide suitable openings which sufficiently let in the daylight or maintain artificial lights may to some extent be left to their option. As the evidence now stands it would seem that the only practicable way of sufficiently lighting the passage is by artificial lights of some sort. This matter, however, may be left open for further suggestions.

(3) The defendants must suitably pave this passage. The case is on all fours in this respect with the Meiuchen Gasa, and the decision of the court of errors and appeals is conclusive in regard to the matter. The defendants are required not to pave any portion of the highway, but to provide the passage which they have substituted for the highway with a suitable pavement or floor. No reason, I think, can be suggested why the passage should not be macadamized precisely as Ridgefield avenue is now macadamized.

(4) The defendants must provide for the draining of the water which flows into the passage or by proper means prevent the water from entering the passage. Defendants must also keep the passage free from the accumulation of sand. Many of these duties are summed up in the statement that the defendants must keep their passage in repair.

How far the decree in this case shall exactly define and prescribe in detail the things which the defendants are required to do in the specific performance of their statutory duty may be determined upon the settlement of the decree. It may be that a reference to a master to define accurately the improvements which-the defendants are required to make will be found convenient. The defendants may desire to submit plans. If an appeal should be taken, it may be advisable to reserve the determination of details for a further hearing.

4. In addition to the matters hereinbefore considered counsel for the defendants interposes several objections to the granting of any relief to the complainants in this case, the most important of which may be briefly noticed.

It is argued that this action under section 39 of the General Railroad act cannot be maintained because no notice had been given to the defendants requiring them to construct and repair this passage or crossing. ÜSTo such defence is raised in the answer, and if it had been, it is not sustained by the correct grammatical construction of section 29, and is also excluded by the express ruling of Chancellor Magie in the case of Newark v. Erie Railroad Co., 72 N. J. Eq. (2 Buch.) 447.

It is also argued that the board of chosen freeholders of the county of Middlesex are misjoined as a party complainant. This objection is not raised in the answer, and being a mere technicality, not in the slightest degree affecting the administration of justice in this case, would not be entertained if it had any weight. In my opinion, the joinder of the county with the borough, under the circumstances of this case, is not open to objection by the defendants. The county by reason of its duties with respect to the paving of the highway has a concurrent interest with the borough in the ascertainment and the compulsory specific performance of the defendants’ duties with respect to this crossing. The decree in this case makes some things of great importance to the county authorities res adjudícala as between them, the borough and the defendant railroad companies. While section 29 provides a new equity suit in favor of the “township or municipality,” wherein the crossing in question is located, there is nothing in the statute which indicates that the suit thus to be brought is not to be governed in respect to the parties to it by the well-settled rules of equity practice and procedure. The county of Middlesex, under these well-settled rules, was, in my judgment, certainly a proper party, and perhaps even a necessary party, and plainly should be aligned as a party complainant rather than as a party defendant.