text:
    Thomas W. McAnarney, complainant. v. Otto A. Lembeck et al., defendants.
    [Decided January 19th, 1925.]
    On appeal from the court of chancery.

      Messrs. Iludspelh & Demurest, for the appellant.

      Messrs. Perkins & Drewen and Mr. J. Henry Harrison, for the respondents.
   Per Curiam.

The complainant, a stockholder of the New Jersey Refrigerating Company, filed a bill in the right of the corporation to compel two of its officers, Otto Lembeck and Albert J. 0. Allison, to account for and pay over moneys of the corporation, which it was alleged they had wrongfully appropriated to their own use from time to time during their respective terms of office. The two defendants filed a joint answer, .in which they admit the receipt of the moneys referred to in the bill of complaint, but deny a misappropriation of any part of it by either of them. In addition to this denial they set out in their answer numerous matters concerning earlier litigations instituted by various stockholders of the company, and in which it was involved, the purpose of which was to interfere with the rights of the defendants as stockholders. The answer further set out certain agreements entered into between the members of the corporation for the purpose of terminating these litigations. There is nothing, however, in this particular part of the answer indicating that the litigations referred to, or the agreements, with relation thereto have any bearing upon the subject-matter of the present litigation. The defendants also' annex to' their answer a counter-claim, in which they charge the complainant, McAnarney, with fraudulently using funds of the corporation for his own purposes, while a manager of one of its plants, and pray an accounting therefor.

Upon the filing of the answer a motion was made to strike out so much of it as followed a denial of a misappropriation of corporate funds by the defendant, and also to strike out the counter-claim. This motion was granted. Subsequently, receivers of the corporation having in the meantime been appointed, an application was made by the defendants that the further prosecution of the present litigation be conducted by the receivers in the place and stead of the complainant. This application was denied. The present appeal brings up the order striking out the part of the answer referred to, and the counter-claim, and also the order refusing to substitute the receivers in the place of the complainant.

Taking up first the consideration of the latter order. We have no doubt that the making or refusing of the application to substitute the receivers was a matter within the discretion of the chancellor. When the suit was begun it was properly brought by a stockholder in the right of the corporation. The facts set out in the bill justify the conclusion that an application by the stockholders to the corporation itself to institute the litigation would have been unavailing.

The subject-matter of the suit and the suit itself being within the control of the court of chancery, that tribunal was entirely justified in the exercise of its discretion in refusing to substitute the receivers in the place of the complainant unless it was made to appear that in the further prosecution of the suit the complainant would not fully and fairly represent the corporation and protect its interests.

As to the order striking out a part of the answer and the counter-claim. The facts set up in the answer which have been heretofore recited are neither material nor relevant to the case laid in the bill, i. a wrongful appropriation by the defendants of the funds of the corporation of which they. were officers; for, assuming their existence, it would not excuse tbe act of the defendants in mulcting the corporate treasury, nor would it bar the corporation of its right to compel an accounting by the defendants of the moneys wrongfully abstracted by them. This being so, the portion of the answer now being considered was clearly impertinent, and was properly struck out.

We consider that the striking out of the counter-claim was also clearly right. By force of chancery rule No. 70, a counter-claim is a substitute for a cross-bill, and only those matters which were formerly the proper subject of a cross-bill can be set up in a counter-claim. The purpose of a cross-bill is to enable a defendant to make his defense more complete and effectual than it would be if he stood on an answer alone, but the new facts which he may introduce into pending litigation by means thereof are such and such only as it is necessary for the court to have before it in deciding the questions raised in the original suit, so that the court may do full and complete justice to all of the parties in respect to the cause of action on which the complainant rests his right to relief. Testing the validity of the counter-claim by this rule, it is clear that the action of the court of chancery in striking it out was entirely proper, for, assuming the facts set up 'therein to exist, those facts have no connection with or bearing upon the cause of action against the defendants set out in the bill.

The orders appealed from will each of them be affirmed.

For affirmance — The Chiee - Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McG-lennon, JJ. 12.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Harry Howarth, respondent, v. Charles G. Teunon, appellant.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following opinion:
    “In April, 1921, a contract was executed by the trustees of the Sickel estate as vendors and complainant as vendee, for the sale and purchase of the property 125 and 127 Warren street, Trenton, for the price.of $20,000, of which $1,000 was paid down, $7,000 was to be paid on June 1st, 1921, on delivery of deed, and $12,000 was to remain on bond and purchase-money mortgage. The contract was never consummated. Of the $1,000 initial payment, half was paid by complainant and half by defendant. Defendant was named in the contract as broker, and was to get $600 commissions from vendor.
    “In May, 1922, defendant obtained a contract of sale to himself from the same vendor for $17,000 (less 'commission’ of three per cent, to defendant as 'broker’), $500 joaid down, $12,000 to remain on mortgage, and balance to be paid in cash on June 1st, 1922, on delivery of deed. This $500 was paid by defendant, the contract was consummated by deed to defendant (who also paid the balance of cash payment). Complainant offered to join and pay half in the completion of this purchase, but defendant refused, offering, however, to turn over the property to complainant for $18,116.04, which complainant refused. Defendant, in August, 1923, sold the property to Edward Reeger for $20,500.
    “The foregoing facts are not in dispute.

      “Complainant says that the first contract of sale was made pursuant to an oral agreement between himself and defendant, that they two should purchase the property as a joint adventure; that the failure to consummate the contract was due to the fault of defendant, who postponed carrying out the requirements oE the contract, urging that they find a purchaser before completing the sale. Defendant denies this; says the $500 he put up was by way of loan to complainant, and that complainant neglected or refused to perform the, contract.
    “Complainant says that in May, 1922, defendant called him up and said he could buy the property for $17,000, and was going to do it and carry out the original proposition’, to which he, complainant, assented. Defendant admits the conversation, but saj^s he intended to buy the property to ‘protect’ himself and to ‘protect’ complainant.
    “The determination of the issue rest's in large part upon the conflicting testimony of the two parties. In the latter part of defendant’s cross-examination he seriously impeached his credibility, both by the things he said and his manner in saying them. One thing I may mention in this connection is his deliberate and positive statement that he did not tell complainant, in May, 1922, that he was going to buy the property in complainant’s name, .and his later statement that he might have told this to complainant. There were other features of his testimony that need not be recited in detail, and there was also some other evidence tending toward corroboration of complainant’s testimony.
    “The preponderance of the evidence is in favor of complainant, and I find that the property was bought as a joint adventure, imposing on defendant the obligation to account to complainant and pay him one-half the net profit on the resale.”
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.

Mr. Richard 8. Wilson, for the resjiondent.

Mr. Marlin P. Devlin, for the appellant.

For affirmance—The Chief-Justice, Tren chard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Buskiric, Clark, McGlennon, Kays, JJ. 13.

For reversal—-None.


text:
    Edward G. Heritage, administrator, &c., respondent, v. Stella Bethel et al., appellants.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery.

      Mr. Benjamin J. Darling, for the respondent.

      Mr. John J. Marnell and Mr. Jjeon Albeit, for the appellants.
   Per Curiam.

The decree appeal from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin, reported in ;8 N. J. Adv. R. 759; 96 N. J. Eq. 515.

For affirmance—The Chief-Justice, Tkenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.


text:
    Henry C. Gorrell, appellant, v. Adelaide Z. Gorrell, respondent.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancer;' advised by Vice-Chancellor Fielder, who filed the following opinion:
    "At the conclusion of the hearing, I stated to counsel that it was my opinion that the complainant had failed to make out a case which entitled him to> the relief he sought touching the real property involved in this controversy and that as to such real property I would deny the prayer of his bill. I also stated that I hoped counsel would be able to reach an agreement concerning the ownership of the personal property in dispute. I further stated that in case complainant should appeal from the decree to be entered, I would file reasons for my conclusions. I am now informed that an appeal has been taken, hence, I file the following reasons:
    “Title to both the Cedar Lake and the Millbum land was taken in the name of the wife, at a time when the relations between the parties were fairly amicable, with the knowledge and consent of the husband. The testimony offered in his behalf fails to convince me that any of his money went into the purchase of either tract, or into the building improvements afterward made thereon. He does not claim that he gave any money to his wife specifically to use for the land purchases or for the construction of the buildings. His claim is that he gave her all his earnings, out of which she paid rent, the cost of clothing both of them, household and all general family expenses and that she was able to save therefrom a balance which represents all the money paid for these tracts and for the buildings thereon. During all their married life, his weekly income at no time exceeded $40 and for that period it averaged $30 per week, except that from August, 1915, to December, 1916, he claims he received $7,000 or $8,000 bji gift from persons to whom he gave a stock market tip, all of which extra money he gave to his wife. The Cedar Lake property was purchased and the buildings thereon were erected prior to 1915, so that if such lands and buildings were paid for out of money he earned, it must have been money saved therefrom by her. It is impossible to believe that out of his weekly earnings, the sum required for this investment could have been saved after meeting their living expenses, or that the sum required for the purchase and improvement of the Millburn property in 1915 could have been so saved. He claims that the Millburn lots were purchased with her savings from his weekly earnings, but that the house was built with the extra money he was receiving about that time. She denies receiving $7,000 or $8,000 from him, but admits that she did receive about $2,300 extra money. He says that the house cost about $6,000 to erect and she puts the cost at about $5,000, so that, unless I accept his statement that he gave her at or about this time, $7,000 or $8,000 (of which there is no proof except his own testimony), the difference between the building cost and $2,300 must have come from some other source and, as I have said, I do not think it could have come from her savings from his weekly earnings. It is admitted that at the time of their marriage the wife had money of her own which she kept in her own bank account; that she speculated in stocks, at times with considerable profit, during the whole of their married life; that he gave her the same stock market tip from which he made his extra money, at the time the house was building, which tip she used to her financial advantage, and that she alwa}^ kept roomers and was allowed to retain the money she received from that source. She then, concededly, had money of her own and she testified it was this money of her own which went into the purchase and improvement of these two properties, and that for such purpose she not only did not use any money saved from her husband’s earnings, but that there were no such savings, and neither did she use the $2,300 extra money, which she admits her husband gave her, in connection with the Millburn property. As to this $2,300, she seems to claim that most of it was paid to her after the building was completed and paid for by her, and that her husband owed her $6,000, because she lost that sum on a bad stock market tip he gave her, and that in performance of a promise to make such loss good to her, he gave her the $2,300. The situation, then, is that her story is as credible as his, and the burden of proof being on the husband, as complainant, to establish his claim, I find that he has not sustained such burden.
    “Even had the husband made it appear to my satisfaction that either or both properties were bought with money he gave his wife from time to time, he could not succeed in this suit. The money was given her without reservation or condition. After he knew that title to the Cedar Lake property had been taken in her name, he continued to give her his earnings. He admits that he was aware that she kept depositing the money he gave her in her bank account with other money admittedly her own; that she had sole control over her. bank account and drew on it for her stock speculations; that title to both properties was taken in her name with his knowledge and consent, and that the Millburn title was taken in her name to secure it against his possible creditors. Under these circumstances the presumption is that the money he turned over to her was by way of gift to her and to establish a resulting trust in his favor in the money, or in any real and personal property purchased therewith in her name, his proof to rebut such presumption must be certain, definite and reliable, and leave no reasonable doubt in my mind that he did not intend to make a gift to her and in-this he has failed.
    “I do not deem it necessary to state the reasons which led me to make the disposition of the personal property involved in the manner indicated in the decree. Counsel agreed as to some of the items. Besides the testimony found in the main case, further testimony was taken as to the ownership-of various household articles, and as to my disposition of such articles, I am informed no appeal has been taken and that the testimony with respect thereto will not be printed.”

      Messrs. Levitan & Levitan, for the appellant.

      Messrs. King & Vogt, for the respondent.
   Per Curiam.

The decree appeal from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance—The Ciiiee'-Justice, Trbnchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.


text:
    Isaac Coltinuk et ux., respondents, v. Lena Hockstein et ux., appellants.
    [Submitted October term, 1924.
    Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 95 N. J. Eq. 513.

      Messrs. Dernbe & Dernbe and Mr. Maximilian T. Rosenberg, for the appellants.

      Mr. Carl T. Olson and Mr. Merritt Lane, for the respondents.
   Per Curiam.

The bill of complaint in this case was filed to compel specific performance of a contract to convey real estate, located in the city of Bayonne.

Our reading of the record and a consideration of the briefs lead us to the same conclusion as that of the vice-chancellor, viz., a decree for specific performance should be ordered.

The decree of the court of chancery is therefore affirmed.

For affirmance—The Chiee-Justice, Trenchard, Min-turn, Black, Katzenbach, Lloyd, Clark, McGlennon, JJ. 8.

For reversal—Parker, Campbell, White, Gardner, Van Buskirk, Kays, JJ. 6.


author: Per Curium.

text:
    Martin J. Cassidy et al., respondents, v. Harry Kruvant et al., appellants.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Backes, who filed the following opinion:
    “The community scheme adopted many years ago by the land company, and incorporated in all the conveyances, that none but residences should be built on the lands in its subdivision, has been vigorously adhered to by the many purchasers who have erected homes. The defendant Kruvant was the first invader of the uniform covenant. Some time ago he built four stores facing South Orange avenue at the corner of Isabella avenue. The “neighborhood” did not strenuously object, presumably because they realized that business was pushing out along South Orange avenue from Newark (South Orange avenue is a main artery between .Newark and the Oranges), and that the coining of stores on ¡the plot on that street was inevitable. Stores are strewn on either side and opposite the tract on South Orange avenue. Kruvant j’ustifies his intrusion upon the covenant on the ground that the neighborhood has changed. Having succeeded in this inroad he ventured further and put up a building on the rear and remaining portion of his lot, facing it on Isabella avenue, which is intended to be used as a .public garage. Whatever merit there may be in his claim of neighborhood change on South Orange avenue, it cannot avail him as to exclusively residential Isabella avenue.
    “The defendant will not be permitted to carry on business on Isabella avenue. He may, however, use the building in connection with the stores facing on South Orange avenue.

      “The defendant had ample warning and built at his peril. His plea that the complainants failed to take court action until his building was well advanced has little to recommend it. They complained vigorously to the building authorities (against issuing a permit for the store building and to him against his project. The covenant relates to- the use of the building, not to the character of the structure, and the warning was sufficient and the suit was timely. A bill to restrain the erection of the rear store building could not have been ¡maintained.
    “Injunction accordingly.-”

      Mr. Theodore G-. Hindenlang, for the respondents.

      Mr. Harry T. Davimos, for the appellants.
   Per Curium.

The decree appealed from will be affirmed, for the reasons stated in the opinion hied in' the court below by Vice-Chancellor Backes.

For affirmance—Tiie Chief-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McG-lennon, Kays, JJ. 13.

For reversal—None.


text:
    Harry B. Floyd, complainant-appellant, v. Edwin S. Mills, defendant-appellee.
    On appeal from a decree in the court of chancery advised by Vice-Chancellor Learning.

      Mr. D. Trueman Stackhouse, for the appellant.

      Mr. William D. Lippincotl, for the respondent.
   Per Curiam.

This was a vendee’s suit for specific performance of an agreement to convey real estate. The contract was drawn by the real estate broker and called for the signature of the defendant, Mills, and also of his wife. It was signed and acknowledged by Mills, and the broker gave Mills his oto check for the first payment. Mrs. Mills refused to sign the contract, and, thereupon, Mr Mills tendered the check back to the broker, and asked for a surrender of the contract, but the broker refused to surrender it, and said he would hold it fot a few days, trusting that Mrs. Mills would change her mind. Later, he handed it to the complainant.

The vice-chancellor found, on the evidence, that neither Mills nor the broker regarded the agreement as complete, and, especially, that Mills had never authorized the broker to deliver it to the purchaser unless and until the wife had signed and acknowledged it, and, consequently, that the actual delivery by the broker was not a legal delivery.

We agree with the learned vice-chancellor in his findings of fact and in the conclusions based thereon. His decree denying specific performance was therefore correct, and will be affirmed.

For affirmance ■— The Chief - Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Van Buskikk, Clark, McGlbnnon, Kays, JJ. 12.

For reversal—None.


text:
    Israel Epstein, respondent, v. Joseph Mundweiler et al., appellants.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who delivered the following oral opinion:
    “This is a suit for the specific performance of a written contract relating to, the sale of real estate, the title to which was to have passed on the 1st of August, 1923.
    “The complainant is the vendee in the contract, and the vendors are the defendants, husband and wife.
    “The contract contains a provision to the effect that if the title to the premises be found defective, vendors agree to repay the $550 deposit made by the purchaser, together with $150 to cover the cost of his expenses and disbursements in investigating the title.
    “It seems that, on the examination, the title to the premises was found to be defective, with the result that the Fidelity Trust Company refused to issue a policy thereon. The uncontradicted testimony on t-lio part of the complainant is that he has been read)', willing and able to* take the title, notwithstanding these defects, at any and all times; that notwithstanding his knowledge of the defects, he approached the defendant and asked him to hurry the conveyance from the 1st of August to the 1st of July, as he had someone else who wished to go in on the enterprise with him. He states that, subsequently, in July, he tried to get the title passed prior to the 1st of August, and again the defendant refused, and in this he is corroborated by the broker, Barth, who states that he asked that the title be passed as soon as possible, notwithstanding the defects, and that the defendant refused to do it, and this occurred on the last day of July; that he then approached the attorney, Mr. Deubel, who- drew this contract and represented the defendants, and told him of the condition of the title; that Mr. Deubel stated he had just received the report of the Fidelity, and was going away and couldn’t give the matter attention, hut would do- so- two or three clays- later. Again, Barth called on Mr. Deubel, and he states he was then informed, and in that he is corroborated by Mr. Deubel, that lie learned from the Fidelity that a title policy would not issue.
    “It appears that there- was no- one in attendance at the office of the place fixed for closing title on August 1st. Epstein didn’t attend to* pay the balance of the purchase price, and the defendants did net attend to deliver the deed.
    “It appears that there was no- deed ever prepared and executed and ready for delivery to Epstein. It does appear that Epstein had the money at that time to- the extent of „ about $15,000 on deposit in various banks, and he had negotiated a loan of about $8,000 on Ms note, which a witness called by the complainant states he- was able and willing to loan Mm to- consummate the purchase.
    “Somewhere about the 8th or 9th of August defendants concluded that they would not convey the title, and so informed their attorney; he in tnrn informed the complainant. They did not give- any reason for the refusal to perform. By the terms of the contract, time was not made of the essence of the contract.
    “After the making of this contract defendants, apparently, undertook the purchase of property in Union county, and intended to erect a building thereon. They made a payment of $100 and moved material, or caused it to be placed on the property, and they agreed to close the title to- the Union property after they had closed with Epstein, and, because of Epstein’s failure to close with them, they were unable to take title to- the Union property.
    “The bill was filed in October. It poems that between August and October Epstein had, not only applied to the Fidelity, but applied to some other title company for a policy, of which company a man named Steiner was the attorney. That was in September or October, and that application, eventually, proved to- be useless, because no- policy would be issued. It appears, from what both parties claim, there is a defect, or several defects, in this title. IIow material they are, I do not know. I have not found it necessary to inquire, because Epstein’s attitude to-day is that, no matter how important and material these defects are, he is ready and willing to take title to the property, with all defects thereon, and pay the balance in cash, according to the terms of the contract. That is the situation.
    “The defendants invoke as a protection against this claim and as a defense, and it is about the only thing I see they have to invoke, but I do not see that it applies—the provision in the contract, to the effect that, if the title be found defective, that then they are to give back to Epstein Ms $550 deposit and pay him $150 additional to cover his costs- and disbursements for searches.
    “This provision of the contract I regard as- being primarily for Epstein’s benefit. It was for him to elect, having found the title defective-, not to- take title, and to- request the return of his deposit, together with the $150 to be paid for his disbursements in examining the title. It was in a secondary sense for the protection of the defendants, in that it limited the amount o-f damages that Epstein co-uld claim by reason of the defective title. In that sense, and in that secondary sense only, can I consider this provision of the contract to be available to the defendants. Epstein has elected to take the defective title, to pay the purchase price in full, and not to- have his deposit returned to him. I think this was the condition that the parties, contemplated when they made the contract and inserted the provision in question in it, and as Epstein does not consider the title sufficiently defective for him not to pay the twenty-three-thousand-dollar purchase price, and stands ready and willing to- do that, I shall advise a decree for the performance of the contract. The settlement will have to be as of August 1st, 1923, unless- counsel agree differently. The property is rented and occupied by tenants, and there is an income therefrom, and, in addition, I presume there have been taxes and interest and other charges upon the property, which one of the parties has paid, and for which proper allowance must be made on the passing of title.”

      Mr. Thomas Brown, for the complainant. •

      Mr. Hugo Woerner, for the defendants.
   Per Curiam.

The decree appeal from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance—Ti-ie Ci-iiee-Justice, Trenciiard, Parker, Minturn, Black, Katzenbaci-i, Campbell, Lloyd, White, Gardner, Van -Buskirk, Clark, McGlennon, Kays, J'J. 14.

For reversal—None.


text:
    Oliver K. Day, receiver, &c., respondent, v. Russell C. Stokes et al., appellants.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “The defendant Bussell C. Stokes invented a machine for which he had obtained letters patent of the United States by -a written agreement which bears date October 1st, 1920, made between him and the Stokes Manufacturing Company, a Delaware corporation, he agreed to transfer to the corporation all his right, title and interest in said invention, together with all his patent rights and privileges, including his letters patent, in consideration of the issue to him of five thousand shares of preferred stock and thirty thousand shares of common stock of said corporation. The letters patent were never actually assigned, and this suit is brought to compel Stokes to specifically perform his agreement to assign. His defenses are that the agreement was negotiated, consummated and executed in this state before the corporation was authorized, as required by section 97 of our Corporation act, to transact business in this state; that the stock consideration to be paid under said agreement has not been issued to him; that the corporation subsequently canceled the agreement, and that the corporation is in laches in instituting this action.
    “The corporation ratified and accepted the agreement at a meeting of its directors, held in this state October 9th, 1920, and the certificate of the secretary of state of New Jersey that the corporation was authorized to transact business in this state was issued December 8th, 1920. The bill of complaint was filed March 16th, 1922. Section 98 of the Corporation act bars a foreign corporation from maintaining any action upon a contract made in this state, “until such corporation so transacting business shall have obtained said certificate of the secretary of state.” Such certificate having been obtained prior to the filing of the bill of complaint, this action may be maintained, notwithstanding the provisions of sections 97 and 100 of the Corporation act.
    “At the first meeting of the incorporators of the company, held October 6th, 1920, Stokes was elected a director, and at the first meeting of directors, held October 9th, 1920, he was elected president. At this meeting of directors, a resolution was unanimously adopted, reciting Stokes offer to assign his letters patent to the company for the consideration above mentioned, accepting the offer, authorizing the execution of such agreement as might be necessary for the pur-' chase of the patent rights, and also authorizing the issuing and delivery of certificates of stock to Stokes, or his nominees, for the number of shares of stock, common and preferred, which were the agreed consideration for the transfer of the patent. At this meeting, or immediately thereafter, the officers of the company were about to issue the certificates of stock to Stokes, when he and they were informed that revenue stamps to the value of nearly $2,000 would be required to be affixed to the certificates, and since it was Stokes’ intention to sell, or otherwise dispose of some of his shares, it was agreed between him and the other officers of the company that instead of issuing certificates to him for the full amount of stock to which he was entitled, such certificates should be issued to his nominees, as he might from time to time direct, and thereafter, from October 27th, 1920, to June 6th, 1921, he gave written directions to the corporation to issue shares of common stock for a total of thirty thousand, and to charge the same to him. At a meeting of the directors, held June 6th, 1921, at which he was present, a written communication, dated June 1st, 1921, from him to the corjooration was read, in which he recited his agreement to sell his patent rights and interests to the corporation for a consideration, part of which was five thousand shares of the preferred stock of the corporation, and in which he said that such preferred stock had not been issued to him, and believing that the interests of the corporation required that he should cancel that obligation on the part of the corporation, he agreed to cancel it, whereupon a motion vas passed which is not clearly expressed in the minute book, but which I construe to be no more than an acceptance of Stokes’ offer to cancel the corporation’s obligation under its agreement, to issue to him five thousand shares of its preferred stock. His counsel argues that the true construction of this motion, as it appears in the minute book, is to annul the whole agreement made by Stokes to assign his patent to the corporation; but, considering all the circumstances of the case, especially the wording of his written offer, I cannot interpret the motion to mean that the directors of the corporation intended to give up' what was practically the only valuable asset owned by the corporation.
    “The agreement on Stokes’ part to assign his patent to the corporation, is clear and unambiguous. From October 6th, 1920, to June 8th, 1921, Stokes was a director and president of the corporation. He was active in its management and in its endeavor to manufacture and sell machines. The minutes of the many meetings of the directors, held during this period, at all of which meetings he was present, and the testimony of witnesses, show that the corporation dealt with the patent as its absolute property; that it built machines thereunder and sold one or two; that it entered into contracts with sales agents for marketing machines; that its employes made alterations, and improvements on the machines and paid for such alterations and improvements with company moneys; that it received from Stokes and an employe of the corporation an assignment of an application for letters patent for an improvement which Stokes said he had made on the machine; that it sold corporate stock upon statements made to purchasers, in which statements Stokes participated, that the corporation owned the letters patent; that Stokes stated to various persons that he had assigned his patent rights to the corporation, and that the corporation was the owner thereof. It was not until August 12th, 1921, that Stokes questioned the corporation’s ownership' of the letters patent. By a writing under that date, addressed to the corporation, he demanded the return of all interest in the invention and letters patent, or payment forthwith of five thousand shares of preferred and thirty thousand shares of common stock, and on August 26th, 1921, he caused to be recorded in the patent office his written abrogation of his agreement to assign the patent to the corporation. All the evidence shows that Stokes had agreed and intended to assign the letters patent to the corporation; that he and the directors of the corporation believed that the corporation was the absolute owner thereof; that Stokes voluntarily -waived-payment of the consideration for the assignment to the extent of ihe thousand-shares of preferred stock, and that he or his nominees received and still hold thirty thousand shares of the common stock, the balance of the consideration.
    “Thus, the corporation performed its part of the agreement and Stokes should be decreed to perform his part, unless the corporation was in laches in bringing this suit, and because of such laches it would be inequitable now to require Stokes to perform. It was about the middle of August, 1821, that the officers and directors realized that the corporation was not the record owner of the patent. A controversy over the ownership of the patent had then arisen with Stokes, and a few weeks afterward he recorded his assignment of the joatent to the defendant Alice Gr. Stokes. Negotiations were entered into between the parties looking toward a settlement of their differences, which continued several months. The practicability of the machine had not been demonstrated, the corporation could not continue manufacturing because of the opposing claims of patent ownership', and it could sell no stock because the patent rights were its only valuable asset. It fell into financial difficulties, and, after this suit was commenced, it was adjudged insolvent, and the present complainant, Oliver K. Dajf, is its receiver. Its financial difficulties can, in a large measure, be attributed to Stokes’ failure to perform his contract and his assertion of ownership of the patent and his subsequent assignment of it. With the record ownership of the letters patent in the corporation, it might have manufactured and marketed machines, and its stock might Have had value. If the defendant Stokes, is now compelled to assign the letters patent to the receiver of an insolvent corporation he will be in no worse position than other stockholders, in whose interest this action is brought, who purchased their stock on the faith of his contract to assign. If this action has npt been prosecuted promptly he is not without fault because he has always been in a position to bring it to final hearing or have the bill dismissed.

      "The defendants Russell C. Stokes and Alice G. Stokes insist that Russell C. Stokes cannot be decreed to assign the letters patent'because he .is not now the owner thereof, he having assigned them to the defendant Alice G. Stokes, by assignment dated August 25th, 1981, recorded in the patent office August 27th, 1921. I do not regard Alice G. Stokes as a Iona fide assignee without notice of the corporation’s rights. She is the wife of Bordeaux W. Stokes, a brother of Russell C. Stokes, who was elected a director of the corporation October 6th, 1920, and treasurer October 9th, 1920, who retained both of these offices until July 11th, 1921, and who attended every directors’ meeting. On behalf of the corporation, Bordeaux W. Stokes executed the agreement with Russell C. Stokes, whereby the latter agreed to transfer his patent rights to the corporation. He was the owner of a large number of shares in the corporation, and he knew that the corporation claimed to be the owner of the patent. Alice G. Stokes became a stockholder December 14th, 1920, when two shares of common and ten shares of preferred stock were issrted to her, and on July 1st, 1921, she acquired- eight additional shares of the common stock. As the wife of Bordeaux W. Stokes, and as a stockholder in the corporation, she must have known of the agreement of her brother-in-law to transfer his patent rights to the corporation long prior to his assignment of such letters patent to her. Finally, the agreement between Russell C. Stokes and the corporation was recorded in the patent office August 18th, 1921, and she, therefore, took her assignment with notice of all rights to which the corporation was entitled under its recorded agreement with Russell C. Stokes.
    "The assignment from Russell C. Stokes to Alice G. Stokes will be set aside, and the defendants will be decreed to release and assign all their interest in the letters patent to the receiver of the complainant corporation.”

      Messrs. King & Vogt, for the complainant.

      Messrs. Bolitho £ O’Connor, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance—The Chibe-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.


text:
    Martha E. Camp et al., respondents, v. Charles K. Krulewitch, appellant.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who> filed the following opinion:
    “August 12th, 1883, the Chelsea Beach Company was incorporated, and shortly thereafter acquired what is commonly known as the Chelsea tract, at Atlantic City. Thereafter it laid the tract out into streets, blocks and lots, and filed a map of the plan with the county clerk, and entered upon the sale of the lots by conveyances with reference to the lot numbers delineated on the filed map. All deeds made bjr it contained uniform restrictions touching the kind and location of buildings to be erected on the lots, and also touching uses to which the buildings could be devoted. The restrictions contained in the several deeds, so far as here material, were as follows:

      “ ‘Under and subject, nevertheless, to the following covenants and conditions which are hereby made a part of the consideration under this conveyance: That no building shall at any time be erected within twenty feet of the front property line of any street or avenue, except on Atlantic avenue, nor within five feet of the side lines of said lots, except where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within five feet of the outside lines of the said lols, nor within twenty feet of the front property line thereof, and also that no building of less value than $500 shall be erected thereon. Also, under and subject to the covenants and conditions, that all diwelling-houses and boarding-houses shall be erected and set at least three feet higher than the grade of the street- or avenue as now established, and also that no more than one building be built or be erected upon each lot for dwelling-house purposes, and that no privy be built within five feet of any adjoining property.’
    “Then follows various restrictions touching prohibited uses.
    “The restriction then concludes as follows:
    “ ‘And it is expressly understood and agreed that the said several covenants on the part of the said party of the second pait above specified shall attach to and run with the land, and it shall be lawful not only for the said The Chelsea Beach Company, and their successors and assigns, hut also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said The Chelsea Beach Company, to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same, it being understood, however, that this covenant is not to be enforced personally for damages against the said party of the second part, their heirs or assigns, unless he or they he the owner or owners of the said premises or of some part thereof at the time of a violation of the said covenant or of a threatened or attempted violation thereof, but the said covenant may be proceeded in for an injunction of and for a specified execution thereof against the said party of the second part, their heirs and assigns, and for damages against the party or parties violating the said covenants, or their heirs, executors or assigns, the object of these covenants being to secure the health, beauty, ornamentation and value of the premises.’
    “All conveyances made by the Chelsea Beach Company prior to August 22cl, 1893, contained these uniform restrictive covenants. The number of lots conveyed during that period does not definitely appear.

      “August 22i, 1893, the Chelsea Beach Company made a conveyance of all the then unsold portion of the tract to Clement J. Adams. The restrictions contained in that conveyance were practically identical with tire former restrictions except in one respect. While the covenants contained in the former conveyances of the Chelsea Beach Company by their terms exempted the lots on Atlantic avenue from the operation of the restriction touching the location of buildings on lots and the restriction forbidding more than one dwelling on a lot, the covenants in the deed to Adams extended that exemption to all lots on Arctic avenue and the territory between Arctic avenue and the thoroughfare.
    “Twelve days later Adams reconveyed the land to a new corporation known as the Chelsea Land and Improvement Company, and from that time conveyances of lots have been made by that company, subject to the restrictions contained in the Chelsea Beach Company’s deed to Adams.
    “All of the complainants herein, as well as defendant, hold under the original the Chelsea Beach Company conveyances and covenants, and not under Adams, except complainant Scull. Part of the lot of Scull appears to be held under Adams and the remaining part under one Baake, who purchased from the Chelsea Beach Company.
    “This suit seeks to enforce the restriction requiring not more than one building to be erected on a lot for dwelling-house purposes—the lots against which the enforcement of the covenant is sought are three Arctic avenue lots. These three lots are adjacent, and are held bjr defendant subject to the Chelsea Beach Company original covenants. Defendant, admittedly, proposes to erect on these three lots four double buildings and one single building—in all, nine buildings and nine garages, one garage for each of the buildings. It is my understanding that each of these buildings are for residences.
    “Accordingly, the primary question arises whether the conveyance in 1893 by the Chelsea Beach Company to Adams of the unsold portion of its tract, which conveyance, by its terms, did not purport to subject the Arctic avenue lots to the operation of the covenants here in question, was operative to render that covenant thereafter unenforceable against Arctic avenue lots by parties holding under the original the Chelsea Beach Company’s restrictive covenants against one also holding under the same covenants.
    “There can be no reasonable doubt of the adoption bjr the Chelsea Beach Company of what is commonly known as a general scheme for the development of its tract of land under a defined plan disclosed by its map and the uniform restrictive covenants contained in all conveyances made by that company during the first ten years of its operations. It was not until that company ceased operations by the sale to Adams of all of its unsold lots that the covenants were modified by exempting a portion of the territory in the Adams deed from the operation of some of the covenants theretofore uniformly used. Indeed, the covenants not only expressly declared that they formed a part of the consideration of the conveyances, and that they should attach to and run with the land, and that their object was to secure the health, beauty, ornamentation and value of the premises, but they also, in terms, declared that it should be the right of owners of lots adjoining in the neighborhood of the premises granted, deriving title from or through the said the Chelsea Beach Company, to prosecute proceedings at law or in equity against threatened violations of the restrictions. These are the very elements which inhere in a general development scheme for the benefit of all lot owners. The partial modification of the restrictive covenants occurred simultaneously with and in the sale of all of the lots of the original proprietor which had not been theretofore sold; obviously, that change properly cannot be said to have been any part of the development scheme of the original proprietor, since the interests of the original proprietor were by that conveyance extinguished. That modification of the plan of development must rather be regarded as the plan of the purchaser. Purchasers holding under Adams may not be privileged to enforce the restrictions here in question as to Arctic avenue lots; but the modification of the restrictions appearing in the conveyance to Adams cannot be said to deny to the prior purchasers from the Chelsea Beach Company the right theretofore enjoyed by them to enforce inter se the Chelsea Beach Company restrictions. If before the conveyance to Adams this suit had been brought by the first purchasers from the Chelsea Beach Company of the lots now owned by complainants against the first purchaser of the lots now owned by defendant, their right to enforce the covenant here in question would not have been doubted. Clearly, the Adams conveyance in no way destroyed such prior rights or denied purchasers of the lots to which the rights belonged the enjoyment of the same rights or released such purchasers from the obligations of such prior restrictive covenants as against other lot owners holding'under the same covenants.
    ‘'“Since all the complainants—except Scull as to a part of his lot—hold under the original the Chelsea Beach Company restrictive covenants, and the defendant holds under the same covenants, I am convinced of the right of complainants to enforce against defendant the observance of those covenants unless the right has been lost through abandonment of the right.
    ““Certain violations of the covenants have been pointed out as evidence of their abandonment by the parties otherwise entitled to enforce them. Most of these violations relate to covenants which have no manner or relation to the covenants, the enforcement of which is now sought, and many of the violations so claimed are of extremely minor importance, such as buildings a few inches nearer the streets than the front line covenant permits, but some violations of the covenant here sought to be enforced are shown. Without undertaking an enumeration or classification of the violations claimed, I think it sufficient to say that the evidence does not justify a conclusion of anything approaching an abandonment of the general scheme either touching the covenant here in question or the other covenants..
    ““Nor can it properly be said that either of the complainants has acquiesced in such violations. Indeed, the few and unimportant violations appear to me more nearly to establisia the potency of the covenants and their general recognition. Complainant Camp may be chargeable with notice of violations of this covenant in the block in which his lot is located to an extent that might be said to deny to him the equitable right to enforce the covenant, but that view cannot be urged as to any of the other complainants who reasonably can be said to have had no knowledge of such violations. Both acquiescence and laches creating an estoppel to deny the equitable right to enforce must be based on knowledge of violations or a duty to know of them, and it has been repeatedly recognized in this state that while it may be a duty of the original town-site proprietor to know of all violations on the entire tract and to prevent them, a similar duty does not obtain as to a single lot owner, touching violations at a distance from his lot and touching which he is not so vitally concerned.
    “A decree will be advised pursuant to the prayer of the bill.”

      Mr. Clarence L. Cole, for the respondents.

      Messrs. Bourgeois & Coulomb, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chiee-Justice, Teen chard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Busktric, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


text:
    Cedar Realty Company, respondent, v. William J. Bahrs, appellant.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “This is a bill for the specific performance of a written contract relating to real estate in the city of Newark. The purchase price was to have been paid and title passed on the 1st ¡of March, 1924. Defendant refused to take title, and in his answer gives as the reason for his refusal that the complainant does not own the premises in question in fee, but has only a tax title thereto.
    -“The defendant further states that complainant’s tax title is defective, because the comptroller of the city of Newark, who made the sale, failed or neglected to post notices of the •sale in five of the most public places in the city of Newark, as required by the Tax act of 1918 relating to such sales.
    “Complainant admits that the comptroller did neglect or omit to post such notices, and it is conceded by counsel for the parties that in all other respect the act was complied with.
    “The case has been submitted on the pleadings and memorandum of counsel, and from the facts recited in the pleadings, it does appear that the notices in question were not ¡posted. It further appears that complainant, more than two years after the date of the sale, foreclosed as a mortgage the tax lien it had acquired under the certificate of sale from the comptroller of the city of Newark, by a proceeding in this court, and that a final ■ decree in. such action was made in favor of the complainant, by virtue of which it claims an indefeasible title in fee for the lands in question.
    “By section 53 of the Tax act of 1918, page 898, provision for redemption is made in the event of any defect in the assessment, or any proceedings to enforce or collect the same, upon the pa3ment of the amount due to the holder of the certificate of sale.
    “No such proceedings were taken setting up the defect in question, nor to redeem the premises.
    “It is further contended that the action of the comptroller should have been reviewed by certiorari, and that this was never done.
    “It further appears that in the foreclosure proceedings in this court, while all parties interested in the premises were brought into court, by due process on them, none of them appeared to defend the action nor to redeem the premises, and that' the final decree in such proceeding was duly regarded by complainant as a deed, and no application has ever been •made to reopen this decree, and it cannot be opened except for fraud.
    “By section 36 of the act of 1918, page 892, the certificate of sale is made presumptive evidence in all courts in all proceedings by and against the purchaser, and the regularity and validity of all proceedings had in reference to the sale after two years from the record of such certificate of sale, and no evidence can be admitted in any court to rebut such presumption, unless the holder of the certificate has procured the same by fraud, or had previous knowledge that the same was fraudulently made and procured, and it appears that complainant’s certificate was duly recorded in the office of the register of Essex county on August 1st, 1920.
    “Furthermore, it appears that complainant’s title to the premises in question has been expressly confirmed by a supplement to the Tax act, approved March 27th, 1924, by which, among other things, it is provided that when a collector or other officer ‘in making a sale of lands shall fail to post notices of sale required by section 19 of the act, the sale having been otherwise duly advertised as required, and more •than two years have elapsed since said sale, the tax sale certificate delivered to the purchaser having been * * * foreclosed * * * and the final decree having been made and entered in such foreclosure, such sale shall be held valid and effectual in law and equity against all the parties defendant named in the decree.
    “From this recital of the facts and the law applicable thereto, I do not find the answer of the defendant presents any valid reason justifying his refusal to perform the contract to purchase the premises in question, and I will advise that the decree for specific performance prayed for be granted.”

      Mr. James R. Nugenl, for the respondent.

      Mr. George- A. Henderson, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed for the reasons Stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance—The Chiee-Justice, Trenchard, Parker, Mintorn, Black, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


author: Lewis, Y. 0.

text:
    Julianne DeCourcy Ryall, complainant, v. Solomon M. Saxe, defendant.
    [Decided June 5th, 1925.]
    Where a general neighborhood plan or scheme of development, with accompanying restrictions, is established, the violation thereof by a landowner in the restricted territory will be enjoined, but where the proofs fail to show that such neighborhood scheme was adopted, this court will not interfere between owners -of land in the disputed area.
    On pleadings and proofs. On bill for injunction.

      Mr. Edward J. Luce, for the complainant.

      Mr. Jacob I. Jaffe and Messrs. Weinberger & Weinberger, for the defendant.
   Lewis, Y. 0.

TMs case is on bill for an injunction to restrain the defendant from building a multiple family apartment-house upon a tract of land fronting on Main avenue, in the city of Passaic, extending from Temple place to Lafayette avenue, and having a considerable depth, -which fronts on Temple place on the one side and Lafayette avenue on the other. It is in the near neighborhood of the complainant’s dwelling, which is located on High street, fronting eighty-eight feet on that street and extending fifteen feet in depth on Temple place aforesaid, which is also called the Boulevard.

It is contended by the complainant that her land, as well as the defendant’s land, were originally parts of a large tract of land owned by a common predecessor in title of both complainant and defendant, and that, as a part of a neighborhood plan or scheme of development of the land, certain restrictive covenants were imposed upon respective grantees of the particular plot into which the general tract was divided.

Complainant also contends that she, as a successive grantee of her respective predecessors in title, is one of the persons for whose benefit those restrictive covenants were created and imposed, and that her property is likewise one of the properties protected by the covenants.

The defendant, on the other hand, contends that there was no such neighborhood plan or scheme of development of the original tract in question, and that, inasmuch as the complainant is not a grantor or a grantee in the particular chain of title to his lot; and, as complainant has imposed no restrictions upon him or his land, she has no equity to restrain the construction of the building which he is about to erect, or has in process of erection, upon his land.

The facts are such that, unless a general neighborhood plan or scheme of development, with the accompanying restrictions referred to, is established, complainant’s right to the relief she seeks must fail. On the other hand, if such a general plan or scheme can be established out of the evidence submitted, it would seem to be equally clear that complainant is entitled to prevail.

The whole case, therefore, .turns upon the determination by the court whether or not there was a neighborhood plan or scheme of development of the lands with accompanying restrictive covenants, which complainant, as a grantee of a portion of those lands, can claim the benefit of, as against another grantee who now seeks to disregard, as complainant contends, those restrictions.

Complainant admits that her tract and the defendant’s tract did not come from a common grantor, who had established a general neighborhood plan or scheme of development. She contends, however, that the two parcels of land involved did devolve from two of several owners of the entire tract, and that all of these several owners at one time entered into a general neighborhood plan of development, and that that is shown by the map “C 2.” • But there is no evidence of these then common owners having entered into an agreement or binding obligation among themselves to "create and maintain the building restrictions and restrictive covenants contended for in this suit. If such a binding agreement, enforceable reciprocally against the common owners, respectively, had been established, and it was shown that the restrictions sought to be enforced by complainant were imposed within the terms of such an agreement, and that complainant and defendant derived their titles from two such respective common owners, under the adjudicated cases, that would be sufficient, in conjunction with the map referred to, to have constituted such a general plan or scheme of development. The right of the complainant to enforce the covenants would then depend upon whether or not she could show- that such restrictions were made for the benefit of her land, and that she purchased in reliance upon them.

A careful examination of the proofs and exhibits fails to convince me that such an agreement as is referred to has been established.

I am satisfied, from the proofs before me, that there was not such a neighborhood plan or scheme of development such as is contended for by the complainant, and that, therefore, complainant has no equity to maintain her present bill against the defendant, and that the bill should be dismissed.

I shall therefore advise a decree in accordance with these views.


author: Baokes, Y. C.

text:
    Leo Lessler, trustee in bankruptcy of Jacob Goldstein, bankrupt, complainant, v. Paterson National Bank, a corporation, defendant.
    [Decided May 7th, 1925.]
    1. An affidavit of consideration, annexed to a chattel mortgage, made by the president of a corporation, the- mortgagee, need not affirm that he is the agent (president) ; he is, in contemplation of law, the corporation.
    2. An affidavit of consideration to a chattel mortgage which states the consideration to be a loan of money, and affirms that the amount “due” thereon is the amount of the loan, when, in fact, the mortgage was not payable for three months thence, is not objectionable; “due,” being used in the sense of an existing indebtedness.
    3. An affidavit to a chattel mortgage which affirms that there is due thereon the amount of a three-months’ non-interest bearing note, besides lawful interest from the date of the note, is not objectionable if, from the affidavit, read in connection with the condition of the mortgage, the amount due is apparent.
    On bill, &c.

      Mr. William Harris, for the complainant.

      Mr. John W. Harding, for the defendant.
   Baokes, Y. C.

Jacob .Goldstein, a silk manufacturer in Paterson, was adjudged a bankrupt in the federal district court, July 17th, 1924. The complainant was elected his trustee in bankruptcy, and he brings this suit to set aside a chattel mortgage made by the bankrupt to the Paterson National Bank, dated March 4th, 1924, and duly recorded on that date. The mortgage covers machinery which has been sold by the trustee in bankruptc3 for about $5,200, free of the bank’s lien under the mortgage, its lien attaching to the fund. The undisputed facts and circumstances surrounding the making of the mortgage are: On December 24th, 1923, the bank held a chattel mortgage on the chattels in question to secure the payment of a loan of $5,500 made by it to the bankrupt. On January 3d, 1924, this loan was increased to $6,500, and a new chattel mortgage of $6,500 was made. The $6,500 loan was on the bankrupt’s three months’ note due April 3d, 1925. Goldstein applied for an additional loan, and on March 4th, 1924, the bank discounted his note, dated that day, at three months, for $9,000, and charged the old note of $6,500, which had still a month to run, to his account. The prior mortgages were discharged and the mortgage in question was made to secure the new loan. The bona fides of the transaction is not questioned. The attack is directed solely to the affidavit annexed to the mortgage. Section 4 of the Chattel Mortgage act (Comp. Skat. pp. 463, 464) provides that every chattel mortgage which shall not be accompanied by an immediate delivery of the mortgaged chattels shall be void as against subsequent purchasers and mortgagees in good faith, “unless the mortgage has annexed thereto an affidavit or affirmation made and subscribed by the holder of such mortgage, his agent' or attorney, stating the consideration of said mortgage, and, as nearly as possible, the amount due and to grow due thereon.” The affidavit annexed to the chattle mortgage reads:

“State oe New Jersey, County of Passaio,
Elmer Z. Halsted, tlie president of tlie Paterson National Bank, the mortgagee in the foregoing mortgage named, being duly sworn on his oath, says that the true consideration of the said mortgage is as follows, viz., the sum of $9,000 loaned to the said Jacob Gold-stein, as evidenced by a certain promissory note bearing even date herewith, and this mortgage is given to secure the payment thereof, and deponent further says that there is due on said mortgage the sum of nine thousand dollars, besides lawful interest thereon from the fourth day of March, 1924.
Elmer Z. Halsted.
Sworn and subscribed this 4th day of March, a. d. 1924, before me, at Paterson, N. J.
John L. Griggs,
A master in Ghancery of N. J."

The affidavit is criticised because it does not affirm that the affiant is the agent (president) of the mortgagee. The president’s affidavit is in legal contemplation the affidavit of the bank and not that of an agent or attorney. American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law 721; Black v. Pidgeon, 70 N. J. Law 802.

It is objected that the affidavit does not state the true consideration of the mortgage in these respects—(a) That the consideration of the mortgage was not $9,000 loaned to said Jacob Goldstein, but that, in fact, it was a $2,500 additional loan and the surrender of the former note of $6,500 and mortgage given to secure it. If this be a permissible analysis, it does not change the legal aspect, for the $6,500 debt was not extinguished, and it, with the $2,500, constituted the $9,000 loan. Sadler v. Banaff, 85 N. J. Eq. 335. (b) That not $9,000, but that sum less the discount, was loaned. A loan of $9,000 was made. A counter charge for discount was made. This point was, substantially, disposed of against the present contention in Flockhart Foundry Co. v. Cox Automatic Pipe, &c., 95 N. J. Eq. 382; affirmed, 96 N. J. Eq. 396. (c) That $9,000 was not loaned, for the reason that the $6,500 note was charged in full against the account of the mortgagor, no allowance being made for unearned interest thereon of thirty days—March 4th to April 3d—$34.30. If a rebate is due, it is a credit independent of the loan. But it is not clear that the credit was not given. The bank’s ledger account with Goldstein does not show that it was, but Goldstein himself says that it was paid to him, and it so appears by an entry on the stub of his check book. It may have been remitted in cash.

The next point is, that the affidavit does not truly state, as near as possible, the amount due and to grow due on the mortgage, in that it reads that there is due on said mortgage the sum of $9,000, when, in fact, the loan was not due until three months hence, which, it is contended, invalidates the mortgage, under Hunt v. Ludwig, 93 N. J. Eq. 314; affirmed, 94 N. J. Eq. 158, where it is held, following the authorities of this state, that a misstatement in the affidavit of the consideration, though innocently made, avoids a chattel mortgage. The point is not well taken. Mr. Justice Swayze, in Metropolitan Fixture Co. v. Albrecht, 70 N. J. Law 149, held a chattel mortgage affidavit to be good, which stated that the amount due was a certain sum, when, in fact, it was to fall due later, saying that “the word ‘due’ does not necessarily mean ‘owing and payable.’ ” It is often used to signify merely the present existence of a debt to be paid hereafter. And in Green v. McCrane, 55 N. J. Eq. 436, Vice-Chancellor Grey declared that the word “due” has been defined in this state to signify, sometimes, simply indebtedness, without reference to the time of payment, and at other times it means that the day of payment or render has passed, and held as not faulty an affidavit which affirmed the mortgage sum to be due. although it was not then payable.

It is also claimed that the affidavit is untrue, because it states that the sum due is $9,000, “besides lawful interest thereon from the 4th day of March, 1924.” These super-added words are immaterial. There was no interest due when the affidavit was made, and none could have accrued, because it was made at the very time the indebtedness arose. Furthermore, the condition of the mortgage, to which the affidavit referred, discloses that the note of $9,000 was non-interest bearing, and that it was payable in three months. It was obvious to all interested that no interest was due. In Green v. McCrance, supra, the vice-chancellor thought the statutory requirement, that the amount due and to grow due be stated “as nearly as possible,” indicated that it was not to be precisely and exactly stated, and held an affidavit to be unimpaired by the statement that there was interest due on the amount of an unmatured non-interest-bearing obligation, when, upon reading the affidavit in connection with the condition of the mortgage, the amount due was apparent.

Bill dismissed.


author: Backes, Y. C.

text:
    Samuel Kobrin and Philip Pomerantz, complainants, v. Charles Drazin, defendant.
    [Decided May 7th, 1925.]
    1. Judgments recovered against an adjudged bankrupt within four months of the filing of the petition in bankruptcy are void as liens upon the bankrupt’s estate only at the instance of the trustee in bankruptcy, and then only if the bankrupt was insolvent at the time of the recovery. If a trustee abandons property as valueless to the estate, it reverts to or remains in the bankrupt subject to the liens.
    2. Specific performance (may be ordered if the grantor can give good title at the time of the decree; but this grace is not granted to one who was able but unwilling to perform at the time fixed by the contract.
    3. Time, made of the essence of the contract by stipulation or circumstances, may be waived by inconsistent conduct subsequent to the time fixed for performance. ,
    On bill, &e.

      Mr. Edward R. McGlynn, for the complainants.

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

The complainants agreed in writing to sell to the defendant two apartment-houses. The defendant refused to accept a deed, and pay the purchase price, on the day fixed for the transfer, because the title was not clear, and defends on that ground, and because time was of the essence of the contract.

Five judgments against two former owners in common of the land are recorded liens against the land. One was recovered more than four months before, and four within four months of the filing of a petition in bankruptcy against the judgment debtors. The land being encumbered in excess of its value, the trustee in bankruptcy abandoned it,‘and thereupon the bankrupts conveyed it to the complainants’ predecessor in title.

Under section 70a of the Bankrupt act, real estate passes to the trustee, and under section 67f “all levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt.” A trustee may abandon property when it is valueless as an asset of the bankrupt estate, whereupon the title reverts to, or, as it is considered, remains in the bankrupt. Lovel. Banlcr. (4th ed.) 77S. The complainants contend that by the section of the Bankruptcy act above quoted the judgments were extinguished as liens upon the land in the hands of the trustee, and that, upon the abandonment by 'him, it reverted unencumbered to the bankrupts. If the trustee had sold and conveyed, not abandoned, the land, there might be some merit in the contention, but the land was abandoned—discarded. The title reverted to the bankrupts in the condition it was in when it passed out of them to the trustee. Such abandoned property, like exempt property, is not administered in bankruptcy, and is unaffected by the act. Of. cases in note to 4% B- B. A. (N. 8.) 296.

Furthermore, judgments recovered within four months of the filing of the petition are not automatically dissolved by the adjudication. Insolvency of the bankrupt, at the time they were recovered, is in indispensable condition to the operation of the act. Insolvency must be established as a fact. Simpson v. VanEtten, 108 Fed. Rep. 199. The right to annul such judgments is in the trustee for the benefit of the bankrupt estate. He alone may invoke the act. He cannot assign the privilege, or abandon it to the bankrupt. 7 C. J. 191, 199.

The judgment recovered prior to four' months of the filing of the petition in bankruptcy is, plainly, not within the purview of the Bankruptcy act. The complainants’ reason for their attack on this judgment is, that a judgment is not a lien on land unless execution issues. Writs of execution affect, not the lien, but the priority of lieiis as between holders of judgments. 3 Comp. Stat. p. 2955; Van Sciver v. Bryan, 13 N. J. Eq. 434; Bloom v. Welsh, 27 N. J. Law 177.

None of the liens of the judgments was, of course, affected by the discharge in bankruptcy of the judgment debtors. The discharge relieved them of personal liability only; the liens on the land remained. Bassett v. Thackara, 72 N. J. Law 81.

Oh the day fixed for the passing of title the defendant was ready to perform, but the complainants refused to discharge the judgments of record, or to make allowances for them in the settlement, and they still persist and refuse to remove the liens, offering, however, by their replication to the answer in the suit, to do so if the court finds that the judgments are encumbrances, and claim, because of the offer, that the defendant cannot successfully resist a decree. Where there are no complications a specific performance will be directed if the complainant can make good title at the time of the decree, although he could not before. Gerba v. Mitruske, 84 N. J. Eq. 19. And it will not be defeated by -an encumbrance which majr be discharged out of the purchase-money. 25 R. C. L. 277; Moore v. Galupo, 65 N. J. Eq. 194. But this grace is extended only to those who are willing and unable, not to those able aud unwilling to perform as agreed. The unjustifiable attitude of unwillingness on the part of the complainants to perform on the day fixed was aggravated by their unreasonable action at that time. The defendant and his brother Benjamin, each, bought one of the apartment-houses, each contributing one-half of the clown money. Both dickered with the complainants. The contract was made in the name of the defendant for convenience sake, acquiesced in by the complainants. Although time was not stipulated to be of the essence of the contract, the complainants knew that Benjamin had sold where he then lived and had to find shelter elsewhere, and that September 1st was fixed for the passing of title because of this exigency. Benjamin was obliged to vacate, and, on the day, with his household effects on trucks, appealed to the complainants for possession. They refused; they were determined to force the brothers to take the encumbered title. It was suggested that a makeshift lease be made until the encumbrances could be removed, or some arrangement could be made concerning them, and an additional thousand dollars, on account of the purchase price, to mollify the complainants, was offered, but of no avail. They took the stand, payment in full or no possession, save that they offered to put in escrow a sufficient sum to discharge the judgments if and when they were declared to be liens, which was brushed aside as leading to vexatious litigation, and all the while interfering with defendant’s free alienation of the property. While I have no question that, originally, in the circumstances and by conduct of the parties, the time fixed for the transfer became and was of the essence of the contract (the properties were bought for homes—Tilley v. Thomas, 3 Ch. App. (L. R.) 61; Levy v. Lindo, 3 Mer. 81; Fry Spec. Perf. § 1056), the plea cannot be sustained as a bar, because it appears to have been waived by subsequent negotiations and later rejection of the contract, specifically, on the ground of the existence of the liéns. 25 R. C. L. 256; Levy v. Lindo, supra.

But the indefensible conduct of the complainants in persistently refusing to give a clear title, when it was their duty and in their power to give, and on such frivolous grounds, brings the case within the familiar principle reiterated in Pyatt v. Lyons, 51 N. J. Eq. 308. “The relief invoked is not a matter ex debito• juslitiae; the bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity to be exercised according to its discretion, and he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt and eager to perform the contract on his part.” Meidling v. Trefz, 3 Dick. Ch. Rep. 644 Page v. Martin, 1 Dick Ch. Rep. 589; Blake v. Flatley, 17 Stew Eq. 231.

The defendant was willing, the complainants were not, to perform the contract according to its terms. Their refusal to do equity, bars them from seeking equity.

The bill will be dismissed.


text:
    Marie L. Barton, petitioner, v. Marshall N. Barton, defendant.
    [Decided May 1st, 1925.]
    To accuse a wife of adultery is not extreme cruelty per se. It must be falsely and maliciously made and come to her notice, causing pain and anguish, to justify a decree of divorce.
    On petition and cross-petition for divorce.

      Mr. William C. McTague, for the petitioner.

      Mr. Alexander M. Gold finger, for the defendant.
   Backes, Y. C.

The original petition charged constructive desertion, the wife claiming that she was forced to leave her husband because of cruel conduct, consisting of calling her vile names and perverted sexual intercourse. The defendant counterclaimed, charging adultery. Neither charge was sustained. The defendant was permitted to amend, charging desertion, and the petitioner amended her petition, charging extreme cruelty in that the husband falsely accused her of adultery. A second hearing was had.

It is established that the wife left her husband, and that she has resisted his reasonable efforts to have her return, and is guilty of desertion unless her charge of cruelty is proved. That her husband accused her of the crime I have no cloubt. To accuse a wife of adultery is not extreme cruelty per se. The accusation must be false and maliciously or wantonly made, and must be visited upon her or come to her notice, causing anguish and pain. Vice-Chancellor Beiitlej, recently, in Hill v. Hill, 3 N. J. Adv. R. 240; 97 N. J. Eq. 237, reviewed some of the cases in this state. Though the accusation be untrue in fact, if made under stress of reasonable suspicion caused by the wife’s conduct, it cannot be said to amount to extreme cruelty. The cruelty is tempered. Here the wife’s flirtations aroused the husband’s suspicion and ire, .and the accusations followed. They do not appear to have come as a blow to her. Whether she regarded them as not undeserved, under the circumstances, or what not, they seem not to have given her much concem-^-so little, indeed, that they were not assigned in her original petition as a ground for her separation. They were neither the reason nor occasion for the separation, and, as a ground for divorce, appear to have been an afterthought, and resorted to io bolster up an otherwise weak cause.

Extreme cruelty is not made out, and a decree will go to the husband.


text:
    Newark Cleaning and Dye Works, Incorporated, a corporation, complainant, v. Samuel Gross et al., defendants.
    [Decided April 30th, 1925.]
    In the absence of a restrictive covenant, and when no fraud is practiced, a former employe will not be enjoined from soliciting the customers of hisNIormer employer.
    On motion for preliminar]' injunction.

      Messrs. Bilder <& Bilder and Mr. Merritt Lane, for the complainant.

      Messrs. Kraemer & Siegler, for the defendants.
   Backes, Y. C.

The complainant’s customers are trades people—jobbers or middlemen—in the cleaning and dyeing business. They gather the trade, the complainant does the work. Hockberg, defendant, worked for the complainant six years as solicitor, when he quit to engage in a like business for himself. He is now competing, and motion is made to enjoin him from soliciting complainant’s customers who were on his list and route while in the complainant’s employ. There is no restrictive covenant, no artifice or fraud has been resorted to, nor has there been any unfair dealings or advantage taken, unless soliciting the customers violates the law of trade secrets. The complainant’s customers are all well known in the trade; they are classified and listed in the telephone and city directories, and while it may not be known, generally, who does their work, it is easily ascertainable. They are an open market and fair field for all in the complainant’s line who seek them. The defendant left his list behind when he quit. He has no need for it for he knows the customers by heart-—any other solicitor would know them by the display signs of their business. The fact that he knows they deal with the complainant, while others know only that someone does their work, is not a trade secret, sacred to his former employer, not to be invaded now that he has launched in business for himself. If it were there would be fewer merchants. The open door to these customers, earned by his tact and contact with them, is the defendant’s, not his employer’s gain, of which he ought not to be deprived simply because he secured them as patrons of the complainant. There are cases where courts have interfered to protect against former employes pirating customers, as in Witkop & Holmes Co. v. Boyce, 112 N. Y. Supp. 874; affirmed, 115 N. Y. Supp. 1150; Peoples Coat, Apron and, Towel Supply Co. v. Light, 157 N. Y. Supp. 15; affirmed, 224 N. Y. 727; Golden Cruller, Doughnut Co. v. Manasker et al., 95 N. J. Eq. 537; and to protect against invasion upon list and route customers by former drivers and solicitors, where the customer is latent or the field potential, as in the laundry trade, for the family wash, where the customer is occasional, as in Empire Steam Laundry v. Lozier, 165 Cal. 95; 44 L. R. A. (N. S.) 1159, and other cases there cited. In such instances the list of customers is obviously a trade secret and property. But where there is no contract to refrain; no fraud or imposition practiced; no list carried away and used, or used for an idterior purpose, and where customers are dealers in the open market for the best and cheapest service, and known to all the trade who care to inform themselves, the knowledge acquired by á solicitor that some of them are customers of his employer, which information could be had by anyone upon casual inquiry or carefully observing the route, is incident to the employment, and, like any other experience, not secret to the servant and sacred to his employer, may be later used by him in competition, otherwise lawful. The distinction lies between pirating and competing for customers. This case comes under the latter head. Some of the authorities sustaining the view here entertained are Boosing v. Dorman, 133 N. Y. Supp. 910; affirmed, 210 N. Y. 529; Peerless Pattern Co. v. Pictorial Review Co., 132 N. Y. Supp. 37; Scott v. Scott, 174 N. Y. Supp. 583; Goldberg v. Goldberg, 200 N. Y. Supp. 3; Clark Paper Co. v. Stenacher, 236 N. Y. 312; Irish v. Irish, L. R. (40 Ch. Div.) 49; Nichol v. Martyn, 2 Esp. 732; Stein v. National Life Asso., 105 Ga. 821; Federal Laundry Co. v. Zimmerman, 218 Mich. 211; Fulton-Grant Laundry Co. v. Johnson, 140 Md. 359; Garst v. Scott, 114 Kan. 676; Boon v. Krieg, 156 Minn. 83; Kansas City Laundry Service Co. v. Jeserich, 213 Mo. App. 71.

Motion denied.


text:
    Wallace & Tiernan Company, Inc., a corporation, complainant, v. United States Cutlery Company, a corporation, defendant.
    [Decided May 13th, 1925.]
    Where the operation of an’ engine so shakes an adjoining business property that it seriously interferes with the proper conduct of the business, such operation will be enjoined by this court as a nuisance upon the 'grounds of injury to business, by the impairment of the efficiency of the employes, and the injury to the property by being deprived of its utility, and thus appreciably impairing its value.
    On bill, &c.

      Messrs. McCarter & English (¡Mr. Robert U. McCarter) and Mr. Loran N. Wood (of the New York bar), for the complainant.

      Messrs. Edward M. & Runyon Golie (Mr. Runyon Golie), for the defendant.
   Backes, Y. C.

The complainant complains that it is grievously annoyed and disturbed in the carrying on of its business by the vibration of its factory, due to the high-speed uniflow engine and generator in the defendant’s factory, some two hundred and fifty feet away. The engine is used to generate electric power for the plant, and was installed after complainant was established. The defendant admits that its -engine causes the vibration, but denies legal responsibility for the injury because the complainant’s business, which it claims is singularly sensitive and conducted in a type of building particularly susceptible to vibration, is carried on in a factory district where such vibrations must be accepted and endured as the common lot of the neighborhood.

The complainant manufactures chlorine gas distributing machines for water sterilization, meters, gauges and various scientific devices, which, in designing and adjusting, require close calculation and minute deliberation, concentration of mind and a steady hand.. It also conducts an experimental laboratory in which delicately adjusted appliances are used, and a drafting room for the drawing of plans incident to the business. These operations are conducted on the third or top floor of the building, where the executive offices are also located, the first and second floors being used for manufacturing and for stock rooms, Avhere the heavy machinery is' installed and the manual labor is performed. The building is in a factory neighborhood. The entire building vibrates, but sensibly and annoyingly only on the third floor, no inconvenience being experienced in the loAver floors, owing, no doubt, to the character of the work carried on there. The oscillation of the building, while not great, is severe, the disturbance being caused by the incessaaíF and accumulated vibrations of two hundred per minute—the speed of the engine. The proof is unmistakable that the department heads and their assistants are seriously hampered in their work, varying in degree according to their occupation—all by distraction, some physically as well. Study of problems and observations of tests are carried on Avith increased difificulty; draftsmen work with trembling hands; stenographers’ pads quiver, and so on throughout the force, resulting in material reduction in efficiency and consequent financial loss to the business, and injury to the property by the impairment of its utility for personal use, for rental or for sale. The injury, although the loss cannot be spelled out in dollars and cents, is substantial.

Two preliminary questions need attention. It is suggested that the complainant could escape much of the trouble by moving its executive office, laboratory and draft room to a lower floor. This would be impracticable; the various departments are suitably and accommodatingly located, one to the other, to obtain the best operating results. The suggested disarrangement of the shop scheme, to let out the defendant is, to put in mildly, gratuitous.

It is next claimed, and much testimony was offered pro and con, that the complainant’s building was inherently weak, structurally, and that, to that, much of the trouble is attributable. ■ The effort was to show that the third floor was loose-jointed—-that that type of building is loose-jointed. This is not made out. The building is of the approved mill-type construction, well put together and staunch, and there is no oscillation save that from vibrations due to the defendant’s engine; nor is it shown that the vibrations are accentuated on the third floor by any defect in structure. Moreover, it seems to me, if it were made to appear that a mill-type structure were not as rigid as other types of factories, it would not be pleadable avoidance of the admitted offense of rocking the complainant’s building.

The principal question in the case is whether the complainant is called upon to submit to the vexations because its mill is in a district given over to manufacturing. The circumstance that the complainant is seeking to protect its property and its business, delicate of operation in some branches, in a factory district,.is criticised and much stressed, but the location impresses me to be of but little importance in considering the primary cause of complaint—'the shaking of the building—which renders it unfit for the clerical forces on the third floor, and impairs its value for both sale and rental. The defendant’s position is, in effect, that the complainant has no right to carry on, in a factory district, a. business .requiring such quiet as its business does; that it should isolate itself, and that it assume all the risk of disturbance, present and future. I cannot see any logical basis for this. The complainant’s factory is appropriately located in a factory district. Laboratories and drafting rooms and executive offices are common adjuncts to factories. The clerical force of any factory would suffer the same inconvenience and disturbance. But, even in a mill district, one must use his land consistently with his neighbor’s reasonable use of his property. The golden'rule maxim, “so use your own as not to injure another’s,” applies there as elsewhere. The character of the neighborhood affords no immunity for violating this rule of law of private property. The prevailing community smoke, smell, noise and vibrations are not license to smoke out, or drive out with stench, or drown with noise, or shake out a neighbor, and deprive him of the comfortable use of his land. The right of enjoyment is as sacred to him there and as guarded by law and protected by equity as elsewhere, save as to the ordinary conditions of the neighborhood.

The law guards jealously, alike, the enjoyment of all private property. The extent of the right of enjoyment may vary, but not the rule of protection. The right of enjoyment is surrendered in a factory district, only, to the extent of the inconvenience incident to the character of the business carried on there, no more. To be forced to suffer more is actionable. The ceaseless pounding of the vibrations from the defendant’s engine against the walls of the complainant’s mill is not incident to the neighborhood. The same annoyance would happen, under the same conditions, if both factories were on a farm. Before the defendant’s power generating engine was installed there was no such disturbance, and it was then'a factory district. Remove it and you still have a factory district, and with no sensible vibrations. It was not a neighborhood hazard to be anticipated, and is not one to be suffered. No other factory emits such disturbing vibrations. Community vibrations must be endured, but vibrating a community is a nuisance.

The right to an injunction against the nuisance rests upon the grounds of injury'' to the business by the impairment of the efficiency of the employes, and injury to the property by being deprived of its utility', and thus appreciably impairing its value, and, consequently, its rental and sale value. It was upon the theory of the law stated that relief was granted, on the first ground, in Demarest v. Hardham, 34 N. J. Eq. 469, and, on the second ground, in Hennessy v. Carmony, 50 N. J. Eq. 616, and in Roessler & Hasslacher Chemical Co. v. Doyle, 73 N. J. Law 521, where damages were awarded. In Hennessy v. Carmony, supra, where the property was not located in a factory district, Vice-Chancellor Pitney held, upon authority, that the law does not tolerate interference with the enjoynnent of land, appreciably impairing its usefulness and value, and that to shake your neighbor’s house, to his discomfort, is actionable injury. In the Boessler & Hasslacher Case the property protected was in a factory district. In Demurest v. Ilardham, supra, the property was located in a factory district, and while the court held that an injunction would not go to the owner complainant, because the safety and stability of his building was not endangered by the vibration complained of, relief was granted to the partnership, complainants, because they were disturbed in carrying on their trade.

The intimation in the brief, the point was not argued, that the vibrations are uniform through the ground throughout the neighborhood, is immaterial. That no other mill owner or neighbor has complained is beside the question. The vibration causes special injury to the complainant’s business and property^, and, though others may suffer uncomplainingly, the complainant is not obliged to. Roessler & Hasslacher Chemical Co., supra.

It is not an answer that defendant’s engine is of standard type and installed on a foundation of approved construction. This is not a negligence case. It is enough that the engine causes the injury. That the vibrations are more particularly directed towards the complainant’s plant than elsewhere, clue, possibly, to earth formation, is not the complainant’s fault. Besides, the infliction of the injury is entirely unnecessary, because It can be easily avoided by insulating the foundation; this can be done at a moderate cost.

An estoppel is also relied upon. It appears that the offending engine was installed by a former owner of the defendant’s plant, to whose ownership.the defendant company succeeded through a bankruptcy sale, and that the complainant suffered annoyance then 'as it does now, and it is contended that it was the duty of the complainant to give notice to the defendant before it purchased. There was no such incumbent duty, but, assuming that there was, it appears that the present management of the defendant company was interested in the defunct company, and knew of the nuisance through complaints to that concern made by the complainant.

There will be an injunction. The defendant will be given a reasonable time to make repairs.