text:
    Albert M. Jordan v. William A. Logue, substituted administrator, &c., et al.
    [Submitted November 4th, 1909.
    Decided December 28th, 1909.]
    1. A creditor whose claim has been barred by a rule of the orphans court barring' creditors, cannot maintain a bill in the court of chancery to draw the administration into that court, in the absence of averments in the bill showing the necessity therefor.
    2. Statutory rights of such barred creditor defined.
    On demurrer to bill.

      Mr. Edward Ambler Armstrong and Mr. Clarence L. Cole, for the demurrants.

      Mr. John J. Crandall, opposed.
   Leaming, Y. C.

I am unable to conclude that a court of equity should entertain the present bill. The remedies afforded to complainant by the courts of law appear to be entirely adequate, and I find no reason for the exercise of equitable jurisdiction.

Complainant’s rights and remedies as a creditor, who has failed to file his claim with the administrator of his debtor prior to the entry of the rule to bar creditors, appear to be well defined.

So far as the personal estate of the deceased debtor is concerned, the effect of the rule to bar is defined by section '70 et seq. of the Orphans Court act. P. L. 1898 p. 740 et seq. If there is a surplus at the settlement of the estate, such creditor may then present his claim to the administrator and be paid to the extent that the surplus is found sufficient for that purpose. If the claim so presented is disputed by the administrator, distribution is suspended until suit is brought to determine the validity of the claim. Such a creditor is also entitled to be paid, ratably with other like creditors, from such assets as he may find which have not been accounted for at final settlement. When an administrator without reasonable cause fails to make final settlement of his account within one year, or apply for a decree of distribution within three months after final settlement, the orphans court may extend to such creditor the same relief he would be entitled to in case the final account had been passed and refunding bonds taken for legacies and distributive shares. Under this section (section 80) it has been held that the barred creditor has a status which enables him to except to the accounts of an administrator. Equitable Life v. Chilsey, 63 N. J. Eq. (18 Dick.) 219; S. C., 64 N. J. Eq. (19 Dick.) 348. The act also affords protection to barred creditors by a requirement of refunding bonds for their benefit when distribution is made by an administrator.

As to real estate, which passes to heirs and devisees, our statute for the relief of creditors against heirs and devisees (2 Gen. Stat. p. 167,9) renders such heirs and devisees liable to creditors of the testator or intestate to the extent of assets by them severally received. The remedy under this statute is at law. Mutual Life Insurance Co. v. Hopper, 43 N. J. Eq. (16 Stew.) 387, 389; S. C., 44 N. J. Eq. (17 Stew.) 604; Edwards v. McClave, 55 N. J. Eq. (10 Dick.) 151, 155; S. C., 55 N. J. Eq. (10 Dick.) 822; Acton v. Schullz, 69 N. J. Eq. (3 Robb.) 6, 8.

With these rights and legal remedies afforded to a creditor whose claim has been barred by a rule of the orphans court barring creditors, I am unable to discern wherein the present bill discloses a necessity for the intervention of this court. In so far as the purpose of the bill may be to draw the administration of the estate to this court, it fails to present any special reasons calling for such action. It is well settled that while this court may assume jurisdiction, to the exclusion of the orphans court, in the settlement of accounts of executors and administrators in any case where the ends of justice may seem to require it, it should not do so where any progress has been made in the orphans court for that purpose unless there is shown some good reason for such course. See Filley v. Van Dyke (Court of Errors and Appeals), 75 N. J. Eq. (5 Buch.) 571, and cases there collected.

The present bill suggests no maladministration or negligence or irregular conduct or conflict of interests, or even complicated features in connection with the settlement now in progress in the orphans court. If a discovery of assets is necessary this court might appropriately assume jurisdiction for that purpose, but the bill does not disclose that necessity; and before this court is called upon for that purpose, it should at least appear that assets may exist which could not be ascertained by a mere inquiry from the parties from whom discovery is sought. The bill also avers that “the resources of the said inventory largely exceed the debts and legal claims against the same.” If this be true, complainant’s claim, if established, will be paid by the administrator at final settlement. If, however, there is danger that the surplus of personal assets, after the payment of the claims filed within the statutory period, will be insufficient to pay complainant’s claim, this court might appropriately enjoin the sale of real estate by the heirs and devisees, if danger of such action on their part exists. The personal property is primarily liable for the payment of debts, and an heir is entitled to have it so applied; at the same time a creditor is entitled to have the real estate applied to the payment of debts if the personal property is insufficient. But the bill fails to show a probable insufficiency, of personal assets and discloses no attempt to ascértain the possibility of such deficiency, and does not seek injunctive relief of the nature suggested. The obvious purpose of the bill is to remove the administration of the estate from the orphans court to this court. I see no advantage to be gained by such course. In an ádminist-ration in this court the assets must be applied as they would be applied in the probate court. Coddington v. Bispham, 36 N. J. Eq. (9 Stew.) 574, 578; Edwards v. McClave, supra. In the absence of averments in the bill disclosing a necessity for the removal of the administration to this court, I am unable to conclude that this court can properly grant any relief under the bill as framed.

This view renders it unnecessary to consider the question of non-joinder.

I will advise an order sustaining the demurrer.


source: Caselaw Access Project

author: Leaking, V. C.

license: Public Domain

text:
    Moses Henry Warwick, petitioner, v. Clara Estella Warwick.
    [Heard January 3d, 1910.
    Determined January 5th, 1910.]
    At final hearing of a suit for divorce against a wife for adultery, her guilt was ascertained and a decree nisi was entered. On motion of complainant a prior order for the payment of alimony pendente Ute was suspended.
    On motion to terminate order for alimony.

      Mr. V. Claude Palmer, for the motion.

      Mr. Ralph N. Kellam, opposed.
   Leaking, V. C.

Pending a suit for divorce by the husband against his wife on the grounds of adultery an order was made directing the husband to pay to his wife certain alimony for her support and maintenance until the termination of the suit. At final hearing the wife was found guilty of adultery- as charged and a decree nisi was entered pursuant to our statute. Complainant now moves for an order terminating the order for the payment of alimony pendente lite.

While I entertain the view that the decree nisi should not be treated as operative, of its own force, to discharge the order for alimony, I think it entirely clear that in a case where at final hearing this court ascertains the facts to be of such a nature that alimony pendente lite could not have been appropriately allowed had such facts been known to the court when the order for alimony pendente lite was made, this court should, on application made for relief against the outstanding order, terminate such order. The decree nisi adjudges the wife guilty of adultery. At the end of the statutory period the bonds of matrimony will be dissolved unless some cause is shown in the interim why a final decree to that effect should not be then entered. The adjudication of guilt is final, so far as this court is concerned, in the absence of cause shown for relief against that adjudication. It seems manifest, therefore, that the order for alimony pendente lite, which was made upon the assumption of innocence on the part of the wife, should be now terminated, in the absence of any cause shown by her why doubts should be entertained touching the adjudication which was made at final hearing.

I will advise an order discharging the order for alimony pendente lite.


author: Teaming, Y. C. (orally).

text:
    Lionel C. Simpson Plumbing and Heating Company v. Edward Geschke.
    [Heard January 24th, 1910.
    Determined January 25th, 1910.]
    A contract embodied in a letter written by the complainant to the defendant in compliance with defendant’s request purporting to contain a memorandum of the terms of an oral building contract between the parties, theretofore entered into between them, but which did not correctly embody the terms of the real contract owing to the mistake of the complainant, will be reformed, where it appeared that the defendant either did not observe the error in the writing, and hence the writing embodied a mistake on his part, or did observe the error in the writing and failed to disclose that fact to the complainant, under circumstances constituting such unconseientious or fraudulent conduct on his part as to entitle complainant to the relief of reformation.
    On final hearing. On pleadings and proofs.

      Mr. Howard L. Miller, for the complainant.

      Mr. Ralph W. E. Donges, for the defendant.
   Teaming, Y. C. (orally).

I do not entertain the slightest doubt touching the facts in this case. It not infrequently happens that where testimony is in conflict I find considerable difficulty in arriving at a conclusion which is entirely satisfactory to me touching the facts concerning which the testimony is in conflict, but in this case I have no doubt whatever touching all that has transpired, notwithstanding the conflict in the testimony. The facts undoubtedly are that in July, 1907, Mr. Stuart, representing the complainant company, orally submitted to defendant, Gesclilce, a bid of $280 per house for this work, and that Mr. Geschke at that time told him the price was too high, and told him that he had received a bid from another party, which was considerably lower, so much lower that it represented in its difference what was equivalent to the cost of papering; Mr. Stuart then undoubtedly requested the right or privilege to revise his figures and submit another bid, and .that request being acceded to, he returned to the house, which he represented, and went over the' matter in detail with Mr. Simpson, the president of complainant company; the result of their joint examination of the details of the figures, on which the first bid had been based, was a determination to submit a second bid of $265 per house, and Mr. Stuart was authorized to make that bid in behalf of complainant company; he accordingly, on the same day, returned to defendant, Geschke, and told him that on a revision of the figures they had determined to make the bid $.265 per house; Geschke said that that was satisfactory and accepted the bid and directed that the complainant Compaq proceed with its work, and the work was accordingly begun under what was a parol contract between the parties, whereby the complainant company was to do this work and was to charge for it $265 per house. It is undoubtedly also a fact that subsequently, and after the work was in progress, Mr. Geschke asked that a statement be sent to him, in writing, containing a memorandum of the terms of the contract, in order that he.could Lave possession of such a statement for his use, and, accordingly, the letter which is now in question, under date of July 25th, 1907, was written by complainant company to the defendant in compliance with defendant’s request. That letter unquestionably contains a mistake, which has arisen through the inadvertence of someone, probably of the typewriter, but it matters not through whose inadvertence; the letter contains the terms of $165 per house, instead of $265 per house as had at that time been agreed upon. Subsequently, a settlement was made between the parties under the assumption that $165 per house was the amount agreed upon, and the money was paid by defendant at that rate and a receipt given which was intended to be a receipt in full.

These are, to my mind, facts which are established by the testimony in this case so clearly, when all the circumstances are considered in connection with the testimony, that, as already stated, I entertain no doubt on the subject whatever.

The suit is to reform the written agreement which is embodied in the letter already referred to. Where the basis of reformation is that of mistake, the mistake must be a mutual mistake, but a reformation may also be had where there has been a mistake upon the part of one party and unconscientious conduct upon the part of the other in the nature of a concealment of the mistake'. As already stated, the real contract between the parties, the contract which was not reduced to writing, was $265 per house. The letter which was intended to take the place of the parol contract and to be operative as a written contract, was not a new contract at all, for there had been no further negotiations or change of terms, but was intended as a writing to embody the terms of the fixed parol contract; neither of the parties had any purpose or expectation or design to accomplish by or embody in the writing anything different from that which had been orally agreed upon. That writing affords the conclusive evidence of the contract unless it is reformed, as that writing was adopted by the parties as embodying the terms of the real contract; it was sent out by the complainant company as its agreement; it was received by the defendant as embodying the terms of the agreement; it was acted upon by the parties in making their settlement, and was, in every sense, adopted by both of the parties as the written contract, or, rather, as a written contract correctly embodying the terms of the parol contract, whereas, in fact, it did not correctly embody the terms of the real contract between the parties. So far, therefore, as the complainant is concerned, the written contract contained a mistake; so far as the defendant is concerned, if he did not observe the error in the writing, then the writing embodies a mistake upon his part; if the defendant did observe the error in the writing, then his failure to disclose that fact to complainant constituted such unconscientious or fraudulent conduct upon his part as to entitle complainant to the relief of reformation; so that, so far as the defendant is concerned, it is utterly immaterial whether he failed to notice the mistake, as did complainant, or whether he discovered the mistake and failed to communicate it.

In a court of law this written contract, which the proofs fully show has been adopted by the parties as the contract controlling their conduct, would be conclusive evidence of what the real agreement had been, and it is the special province of a court of equity to correct any errors or mistakes which have crept into a written agreement of this nature, and for that purpose the relief which is here sought, in the nature of reformation, is appropriately sought.

I do not know that it will be advantageous to comment upon the details of the testimony which lead me to these conclusions of fact, but I should say, I think, that the testimony of Mr. Stuart, and also of Mr. Simpson, has impressed me as testimony that cannot reasonably be doubted, whereas, on the other hand, the testimony of Mr. Geschke satisfies me, in many ways, that the testimony opposed to his statements must necessarily be true. There cannot be the slightest doubt that two bids were submitted, first, the higher bid of $280 per house, then, the second, the lower bid of $265 per house. Mr. Geschke did not question that fact when the matter was under negotiation between the parties for the purpose of adjustment; he then undoubtedly admitted and well remembered that he had turned down the higher bid and asked for a lower one, and even stated to Mr. Simpson that his statement made at that time, to the effect that he had received a bid from another party, was a “bluff;” there can be no doubt of that having transpired, and yet Mr. Geschke at this time denies it, and denies what it does not seem to me he can very well help remembering. I am satisfied also from the testimony <5f Mr. Stuart and Mr. Simpson that when this matter was first brought to the attention of Mr. Gesehke for the purpose of adjustment, that Mr. Gesehke did not seriously claim that $165 per house was the real contract amount; his claim at that time undoubtedly was that it was then too late for a mistake to be corrected, but as negotiations continued, he gradually grew to an attitude of greater resistance; first he said that he would abide by the decision of Mr. Stuart, and when Mr. Stuart’s decision was against him he still further retracted, until finally a suit at law became necessary. His letter written to Mr. Simpson, in which he says that the more he thinks of it the more he is satisfied that $165 was the amount of the original bid, shows, I think, about the course of his mental process ; originally he was not sure and did not undertake to assert that the original bid was $165; as time has gone on, he has grown more positive of the fact until, to-day, he is prepared to testify, and did testify, that when the bid was first offered he was "struck” with it—that is, that the bid as originally presented struck him as a peculiarly favorable bid, and was adopted by Mm at once. Mow, I say, his testimony in that respect is not consistent with what was manifestly the course of the dealings between the parties; there were undoubtedly two bids, and the conditions undoubtedly arose just as the complainant and his witnesses have indicated, and all of the earmarks of the case so firmly confirm that view that I am entirely satisfied it is the only correct solution.

I will, therefore, advise a decree pursuant to the prayer of the bill. The action in the law court may now proceed to trial.


author: Howell, Y. 0.

text:
    Augustus J. Brunson v. The Board of Freeholders of Somerset County.
    [Decided October 25th, 1909.]
    Where the title to land sought to be taken to widen a highway was in dispute and complainant was in the actual possession claiming title, which was not clearly in the board of freeholders of the county, complainant would be granted a preliminary injunction restraining the board from taking possession of the strip until their legal right had been settled; it appearing that to withhold the injunction would destroy complainant’s freehold, to his irreparable injury.
    On motion for preliminary injunction.

      Mr. J. Fdward Ashmead and Mr. Richard V. Linddbury, for the motion.

      Mr. John A. Freeh, contra.

   Howell, Y. 0.

The complainant is the owner of a tract of land which lies along the northerly side of a public highway in Somerset county leading westerly from North Plainfield. The highway is called Green Brook road and runs in a course substantially east and west and was originally laid out in 1796 as a two-rod road. The board of freeholders-are now engaged in improving the highway by widening, grading and macadamizing it. In the course of the widening the county finds it necessary to take possession of and to grade a strip of land running the whole length of the complainant’s property on which are standing twenty-five trees of several varieties which were set out many years ago and have now attained great size.' The complainant filed his bill to prevent the freeholders from taking this strip of property and the trees thereon upon the ground that the title thereto and the possession thereof are vested in himself, and that no proceedings have been taken to condemn the said land or any part thereof, and that therefore the trespass is without compensation and is without his consent. The defendant meets this allegation by two statements—first, that the strip of land in question is within the boundary lines of the old two-rod road, and second, that the ' complainant in 1903 dedicated the land in question to public uses for the purpose of a public highway.

As to the first defence, viz., that the line is within the line of the old road, an affidavit is produced made by an engineer who surveyed or attempted to" survey the centre line of the old highway, talcing his data from the return of the highway surveyors made in 1796. He accompanies his affidavit with a map which shows the northerly line of the old location to include the strip of land in question and the trees.

As to the second defence, viz., dedication, the defendants say that, in 1903, the complainant joined with his neighbors in a declaration of dedication which was endorsed upon a map entitled “plan and profile of Green Brook road showing proposed ■widening and improvement from West End avenue to Rock ave nue, borough of North Plainfield, April, 1903.” ’ This map shows the proposed road as widened, and I understand the allegations of counsel to be that if the road were widened in accordance with the notations of this map it would include the very land in question. The endorsement on the map reads as follows:

“We, being collectively the owners of all the land shown on this map, do hereby dedicate to the public so much thereof as lies within the solid black lines, being also thirty-five (35) feet on each side of the solid red line marking the centre line of Green’ Brook Road, widened, as shown on the map, for use as a public highway or driveway forever, said roadway or driveway to be from curb to curb seventy feet in width forever. Dated Juñe, 1903.”

This is signed by the complainant and eight other property owners, and- was filed in the office of the county clerk of Somerset county on August 15ttq 1903, but for some unexplained reason was afterwards taken from the files by some unknown person and the filing mark erased; it was eventually found a couple of years ago in a desk in the common council chamber of the borough of North Plainfield. Two days after the filing of the map, and on August 17th, the borough of North Plainfield, within whose boundaries the lands in question lie, passed a resolution as follows :

“Resolved, That the dedication of Green Brook Road from West End Avenue to Rock Avenue as shown on map entitled ‘Plan and profile of» Green Brook Road showing proposed widening and improvement from West End Avenue to Rock Avenue, Borough of North Plainfield, April 1903,’ and signed by Charles F. Debele, Charles Arnold and others, be and the same is hereby accepted in accordance with the dedication endorsed on said map, and also that the said map be filed with the Borough Clerk.”

The freeholders claim that this declaration, signed by the complainant and endorsed upon the map, was a tender of a dedication which was accepted by the said resolution and thereby and thereafter became and was valid and effective to constitute a highway seventy feet in width.

To these two defences the complainant replies as follows: To the defence that the land was within the lines of the old road, the complainant says that it was impossible for the engineer who' surveyed the line for the defendants to be sure of a proper location thereof for the reason that the return of the surveyors of the highway in 1796 mentioned no monuments and that therefore the line is indeterminate. The engineer responds to this by saying that he found certain monument stones from which he started his survey, but it appears by the testimony that at least one of these monument stones was a stone about seven inches in diameter with a rude cross cut upon the top of it which lay near the surface of the ground and yas liable to be pushed about and moved when the ground was soft by the collision of the wheels of heavy wagons with it.

And as a further reply to the first defence the complainant says that he lived upon the premises for upwards of thirty years; that he remembers the location of the ancient fence lines; that in the early times the fence line included within the limits of the Brunson farm all the land in question and all the trees thereon, and that the roadway was wholly south of this fence line; that it was thirty-three feet from fence to fence, and that the line of the highway which was used by travelers was midway between the two fences. This the complainant says was a practical location of the side lines of the highway and that having existed so long in the particular location, no court ought now lightly to disturb the situation.

In this statement of practical location the complainant is supported by several people who have long recollections of the situation of the roadway and the fences at this particular point.

As to the defence of dedication the complainant admits that he signed the declaration which appears upon the map, but says that he signed it and delivered it upon the condition that the work of improving the road to the width of seventy feet should be begun immediately, that is in 1903, and claims that inasmuch as the delivery was upon a condition which was not performed, there was no delivery in the law, and that the fact that the map was withdrawn from the clerk’s office and the filing mark erased is evidence that it was understood that the conditions imposed by the complainant upon the delivery had not been complied with, and that therefore the dedication was null and void, and they rely upon the' principle enunciated by Vice-Chancellor Pitney in the ease of O’Brien v. Paterson Brewing and Malting Co., 69 N. J. Eq. (3 Roll.) 117.

It thus appears that the question involved is a question of title and that every proposition advanced by either complainant or defendant is in dispute.

Under these circumstances the question arises whether this court ought to permit the freeholders by force and arms to take possession of a strip of land of which the complainant is now in actual possession and to which he claims title, and the title to which is not clearly and manifestly in the board of freeholders.

To restrain such action would be to hold the status quo until the legal right could be settled. To withhold the injunction would be to permit the public corporation to appropriate lands to which it has not a clear title and to virtually put it in the possession thereof. If it should be permitted to thus enter into possession and construct its highway over the land such action ■would destroy the complainant's freehold and work an irreparable injury.

Such action was restrained by Chancellor Kent in Varick v. New York, 4 Johns. Ch. 53. There the owner had been in possession for upwards of twenty-five years. The city of Few York began an excavation upon land so in his possession, claiming that certain acts of the former proprietors in laying out streets amounted to a cession of them in law to the people and through them to the corporation, the proof of which, however, was not clear. The injunction was continued until the city should have established at law its rights to the ground in question. That case was followed in this state by Chancellor Runyon, in the case of Manko v. Chambersburg, 25 N. J. Eq. (10 C. E. Gr.) 168. There th’e city of Ghambersburg attempted to remove a brick building which the complainant had erected on his lot on what he insisted was the true westerly line of the street. The municipal corporation, on the other hand, insisted that it encroached upon the street to the depth of five feet nine and a half inches. It appeared there that the complainant had been in possession for about fifty 3rears and that for upwards of twenty-five years the road fence had been maintained on a line with the so-called obstruction. The injunction which had been granted on the filing of the bill was continued until the final hearing. The case comes within the rule laid down in Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416; 1 High Inj. § 363.

The result is that a preliminary injunction will issue in accordance with the prayer of the bill.


author: Howell, V. C.

text:
    Georgiana Rheinfort et al. v. Lizzie Abel.
    [Decided October 27th, 1909.]
    1. An answer under oath made to a bill praying for an answer under oath may be amended in matters of form or as to mistakes of dates or verbal inaccuracies; but" an amendment in which defendant shifts his ground of defence cannot be allowed, as he must make a true and exhaustive answer at the earliest opportunity.
    2. An answer under oath which denies the complainant’s peaceable possession of land, and which alleges that defendant executed a deed of the land at a time when she was the wife of B„ who did not join in the deed, may be amended by alleging that at the time of the execution of the deed she was the wife of S., who did not join in the deed.
    3. A cross-bill. must be supported by an answer.
    4. Where the answer under oath to a bill praying for an answer under oath alleged that defendant executed a deed of the land in 1874 while married and that her husband did not join, but did not mention a deed made by her in 1870, an amended answer setting forth the deed made in 1870 could not be allowed.
    5. The original answer under oath made to a bill praying for answer under oath will remain on file as evidence notwithstanding the filing of a supplemental answer and cross-bill, and complainant may use it to attack the credibility of defendant or otherwise.
    On motion for leave to file an amended answer and cross-bill.

      Mr. Alexander P. Maxwell, for the motion.

      Mr. James 0. Connolly, contra.

   Howell, V. C.

The bill in this ease is a bill to quiet title under the act, of 1870. It prays for an answer under oath. The defendant, by the name of Elizabeth Bauerman, filed her answer under oath, denying the complainant’s peaceable possession of the land for upwards of twenty years and alleging that she executed a deed in 1874 without consideration for the land in question or some portion of it, which deed became and is a part of the complainant’s title; that she signed the same with hex maiden name, Lizzie Abel, and that her husband, John G. Bauerman, did not join, and that no title passed thereby, and she claimed title to a portion of the lands in question, which she describes in her answer. She now moves, under the name of Elizabeth Schell, to file an amended answer and a cross-bill in which answer she proposes to deny title and'possession in the complainant and to allege that at the time she signed the deed in question she was the lawful wife of Peter A. Schell, and that her husband did not join in the deed, and that therefore no title passed, and by way of cross-bill prays that the deed of 1874 may be declared void, and that another deed made by her in 1870 affecting the complainant’s title may also be declared void, and that she may be restored to her estate—an undivided one-half interest in the lands in question.

The difficulty attending the amendment of an answer or the filing of a supplemental answer is strongly illustrated by the cases referred to in 1 Dan. Oh. Pr. 777. While amendments in matters of form or mistakes of dates or verbal inaccuracies are very easily allowed, no amendment can be permitted in which the defendant entirely shifts his ground of defence, the reason being that the answer is a disclosure under oath of facts within the memory of the answering defendant, and that it is the duty of the answering defendant to make a true, complete and exhaustive answer at the first and earliest opportunity. The answer proposed to be filed in this case differs from the answer now on file in these particulars. In the first answer she alleges that at the time of the execution of the deed she was the wife of John G. Bauerman; in the second that she was then the wife of Peter A. Schell; but neither husband having joined with her in the deed I do not see how that variation can materially affect the complainant’s case. In the proposed cross-bill she asks that there be set aside not only the deed of 1874, but also a deed made by her in 1870. Inasmuch as a cross-bill must be supported by an answer, and inasmuch as her first answer makes no mention of the deed of 1870, and she cannot be permitted to amend her answer in this regard, she consequently cannot be permitted to make any allegations with respect to the deed of 1870 in her cross-bill.

'Under ordinary circumstances I would not advise any order permitting the filing of any pleading by the defendant which would change her attitude toward the complainant or permit her to shift the grounds of her defep.ee, but in this case the rights and interests of all the parties to the tract of land should be dealt with and settled finally, and it is only with this view that the defendant should be permitted to make any change whatever.

'With these limitations I will advise an order permitting a supplemental answer and cross-bill to be filed, but the answer now on file will so remain. This is but fair to the complainant, who may use the answer for the purpose of attacking the credibility of the defendant, or otherwise as he may be advised.

The order must be taken and the new pleadings filed on or before October 16th, 1909, and the defendant must furnish the complainant gratis with copies within the same time. The defendant must also within the same time pay the complainant’s costs of this motion as a further condition, provided the complainant shall have the same tazed and served. The order will embrace all these conditions.


author: Howell, Y. C.

text:
    Pauline Schultz von Bernuth v. Frederick Augustus von Bernuth, Jr.
    [Submitted October 27th, 1909.
    Decided November 11th, 1909.]
    1. Defendant in a suit for divorce may plead in bar a matrimonial offence committed by complainant which accrued after the filing of the original bill.

      2. A defendant in a suit for divorce may plead by cross-bill a matrimonial offence, entitling him to a divorce, which had not accrued when the original bill was filed, but which did accrue prior to the filing of the cross-hill, and obtain the same relief which he might have obtained by filing an original bill as of the same date.
    3. Where plaintiff in a suit for divorce was a bona -fide resident of New Jersey, and defendant, a resident of New York, duly appeared and answered, the court had jurisdiction to grant defendant a divorce on a cross-bill without personal service of process on the original complainant under chancery ruie 206a providing for relief to defendants in chancery, in so far as the same had not been modified by the Divorce act.
    4. Where a wife in a bill for divorce made charges of matrimonial offences against her husband sufficient, if true, to have warranted his indictment and punishment by the criminal courts, and repeated and enlarged the same in an amended bill, but on the trial after the filing of a cross-hill by the husband demanding a divorce for desertion, which did not accrue until some time after the filing of the wife’s bill, she declined to produce any evidence in defence of her husband’s claim or to prove her own charges, she would be regarded as having filed her bill in bad faith, and hence was not entitled to set up the filing thereof in bar of her husband’s right to a divorce because the grounds had not accrued at the time of the filing of her bill.
    Oil final hearing on petition for divorce, answer, cross-bill, replication and proofs.

      Mr. Thomas L. Raymond, for the petitioner.

      Messrs. Sommer, Colby & Whiting, and Mr. Charles TI. Strong and Mr. Clinton TI. Blake, Jr. (of the New York bar), for the defendant.
   Howell, Y. C.

The controversy in this case arises ont of a suit for divorce. In order to decide the questions raised it will be necessary to examine the course of pleading and practice which was followed. On October 5th, 1908, the wife filed her petition alleging constructive desertion by the husband on June 2d, 1906. This pleading contained a large number of allegations of fact tending to show that the wife was driven from her home by the cruelty and malicious acts of the husband and by threatening language to her and the two children of the marriage. On October 21st, 1908, she filed an amended petition in which she repeats and amplifies her accusations against her husband, and insists on a constructive desertion on June 3d, 1906, the day named for the purpose in the original petition. The citation on file was issued October 34th, 1906, and was -returned not served, whereupon on November 35th, 1908, the usual order for publication to effect substituted service was made by which the husband was required to answer the petition on or before January 36th, 1909. On January 30th, 1909, he, by one of the solicitors of this court, took an order extending his time to answer for twenty days after the expiration of the time allowed therefor by the order for publication; and on February 13th, 1909, he took another order granting him twenty days additional. On February 34th, 1909, he entered a regular appearance and filed his answer by which he denied all the material allegations of the petition and alleged that the wife had deserted him on March 19th, 1907, setting up this offence in bar of her petition. No replication appears to have been filed to this answer. On May 5th, 1909, the husband filed what is styled an “amended answer and cross-petition,” again setting up the wife’s desertion of him on March 19th, 1907, and alleging by way of cross-petition that the wife had deserted him on the day last named without his fault and against his protest, and praying that he might be granted a divorce from the wife on that ground. The files do not show that leave of the court was applied for or given to the husband to file this answer and cross-bill, but upon question being made as to its regularity the solicitors for the respective parties on June 7th, 1909, agreed by stipulation on file that the said “amended answer and cross-petition should be deemed to be duly filed as within time and should in all respects be treated as the defendant’s answer and cross-petition in the cause.” On July 1st, the wife filed her replication, joining issue on the cross-petition and denying the desertion charged by it.

It thus appears that the desertion of which the wife complained had ripened into a complete and suable cause of action at the time of the filing of(her original petition; and it will be likewise observed that at that time the desertion of which the husband complains had not ripened into á complete and suable cause of action, but that it matured thereafter and before the filing of the cross-petition by the husband. . In other words, the husband’s cause of action had not accrued at the time of the filing of the original petition, but had accrued at the time of the filing of the cross-petition. The cause came on for final hearing in October, 1909. Upon the call of the case counsel for the wife declined to proceed on the petition. The husband’s counsel thereupon moved to dismiss the petition, and, at the same time, moved the hearing on the cross-petition. The court directed that the wife’s petition be dismissed, and ordered the hearing on the cross-petition and the replication thereto to proceed. The husband adduced his proofs and rested, whereupon counsel for the wife announced that she would make no defence to the cross-suit, giving reasons therefor which are not pertinent to the present inquiry. The defendant’s proofs fully sustain the allegations of the cross-petition and entitled him to relief on the facts. Whether or not he may have a decree in his favor on the cross-petition depends upon a solution of these questions of law—first, is it competent for a defendant in a divorce proceeding to set up in bar of the suit a matrimonial offence committed by the complaining party which accrued after the filing of the original petition? Second, can the defendant in such suit set up the same facts by way of cross-petition and obtain a decree thereon, or may the defendant interject the new fact into the old suit and obtain the same relief which he might have obtained' by filing an original petition as of the same date?

There are other questions incidental thereto, as—first, whether jurisdiction of the cross-petition may be acquired by this court under the present Divorce act except by personal service of process upon the original petitioner; and second, whether the time during which the wife’s petition for divorce was pending can be computed as part of the two years’ desertion necessary to give validity to the husband’s cause of action?

In Fuller v. Fuller (1886), N. J. Eq. (14. Stew.) 198, there was an application made for leave to file a supplemental answer for the purpose of setting up a matrimonial offence committed by the petitioner since the filing of his original petition.

It appeared satisfactorily to the court from the moving papers that the defendant had stated therein a ease which the court should investigate, and permission was given to file a supplemental answer setting up the petitioner’s adultery since the suit was begun.' Vice-Chancellor Van Eleet says: “Adultery committed after a suit is brought is just as effectual as a bar as that which may have been committed before. Indeed, the latter would seem to be more offensive to the purity and decency which the law requires those who seek its help to observe than the former. I have been unable to find any case in which an application like that which the defendant now makes has been denied. In Brisco v. Brisco, 2 Add. 259, a wife was allowed to charge her husband with having committed adultery pending the suit nearly seven years after its institution. In Moors v. Moors, 129 Mass. 232, it was held where a husband who had obtained a provisional decree entitling him to a divorce in the future, but not dissolving his marriage eo instmte, and he subsequently, under an honest belief that he had a right to do so, married again, that his having sexual intercourse with the woman whom he supposed he had lawfully married constituted adultery and barred his right to a divorce.” See Smith v. Smith, 4 Paige 432, and Burr v. Burr, 2 Edw. Ch. 449. This case does not appear to have been referred to nor its authority called in question, and I shall assume that it expresses the settled law of this state. For, indeed, do I see how it could be held otherwise. If the final decree in a cause fixes the rights of the parties as of its daté it would seem to be consonant with the principles of justice that every right and every defence to which either of the parties was entitled at any time before the date of the decree should be considered. And this leads to the second question, whether the defendant may, by his cross-petition, allege facts which would operate as a bar to the original petition if pleaded by way of answer, and base thereon a final decree in favor of the cross-petitioner. Before proceeding with this branch of the case I will pause to remark that the testimony showed that the wife was actually domiciled in Few Jersey and that the husband was residing in Few York. Objection was made in Abele v. Abele (1901), 62 N. J. Eq. (17 Dick.) 644, that a decree could not be made on the cross-petition of a non-resident defendant,' but it was held that the jurisdiction attached by virtue of the statute which was then in force. The statute now in force (section 6a) confers jurisdiction as broadly as did the act referred to in the Atele Case. The current of authority is in favor of the proposition that, even in the absence of an enabling statute, nonresidents who are brought into court to answer a complaint may prefer their own complaints and obtain the proper relief thereon. Clutton v. Clutton, 108 Mich. 267; Jenness v. Jenness, 24 Ind. 355; 87 Am. Dec. 335. Our chancery rule 206a, in so far as it has not been abrogated by the present Divorce act, does not exclude non-resident defendants from its operation, and its terms are certainly broad enough to include them. The reason is that when the defendant is once personally brought into court he is there for all purposes that relate to the cause of action embraced within the scope of the suit.

This rule (206a) has a bearing upon the second question herein above stated and also on the question of jurisdiction. It unifies the practice in divorce cases with that prescribed in cases arising under the general equity jurisdiction of the court. Its terms include all defendants, non-resident as well as resident. It dispenses with the actual service of process and provides a short and simple method of reaching an issue. The defendant under this rule

“may set up in the answer matter which would be a proper subject of a bill of complaint or a petition, and may obtain such relief thereon as he or she would be entitled to upon a separate bill or petition against the complainant or petitioner,” &c.

In the case at bar the requirements of this rule seem to have been met. The defendant did set up in his answer matter which would have been a proper subject of a petition, and he seeks to obtain the same relief thereon that he would have been entitled to on the same facts if he had filed an independent petition. He has alleged and proved a desertion by the wife which had ripened into a cause of action at the time of the filing of the cross-petition. Tinder the authority of Fuller v. Fuller, supra, these facts are competent as a defence and are admissible in evidence for the purpose of barring the petitioner’s suit even though the right accrued after the filing of the original petition. And with the greater reason may these facts be interposed as a defence and be alleged by way of cross-petition for affirmative relief in a case where the right has accrued and the cause of action has become suable prior to the filing of the amended answer and cross-bill.

Counsel have cited cases from other jurisdictions which illustrate the application of the argument to pertinent facts. In Martin v. Martin, 33 W. Va. 695; 11 S. E. Rep. 12, the petitioner sought a divorce on the ground of adultery. The defendant answered and filed a cross-bill praying for a divorce against the petitioner on the ground of desertion, although at the time of the filing of the original bill the statutory period of desertion had not elapsed. It had elapsed, however, before the defendant filed his cross-bill. This is a state of facts precisely similar to those in this case. The court granted a decree on the cross-bill, stating in the opinion that “At the time the original bill was filed by the plaintiff .the period of three years had not elapsed since the said plaintiff left the house of the defendant, and when that time did elapse he found it necessary to file his cross-bill in order to then allege willful abandonment and desertion of himself by the defendant for three years as a ground for divorce from the said plaintiff. * * * This cross-bill was filed by said defendant for the purpose of obtaining relief which he could not have obtained by an answer in the original suit because at the time the said suit was brought the circumstances did not exist which would entitle him to relief, and this made the cross-bill necessary in order that this might be alleged and full relief might be granted the plaintiff in said cross-bill touching the matters of the original bill.” In Neddo v. Neddo, 56 Kan. 507; 44 Pac. 1, the court held in a case where a cross-petition was filed setting up abandonment of the defendant by the plaintiff that the period of abandonment necessary to give the cross-petitioner a right of action did not terminate with the commencement of the original action, but that it extended to the time of the filing of the cross-petition. The obvious reason is that it is absurd that the defendant should be involved in two suits embracing the same facts and be compelled to prove them, first, as a defence, and secondly, as a ground for affirmative relief; and further, that this court having once rightly obtained jurisdiction over the parties and the subject-matter of the litigation, will proceed to hear the whole case, and measure out justice to the parties once for all on the facts alleged and proved.

If it be objected that the filing of the cross-petition and amended answer rests wholly in the consent of the parties by reason of the stipulation that was entered into,' and that no divorce can be granted in this case because of the well-settled rule that no divorce will be granted upon any consent of the parties, it may be said that if application had been made to the court for leave to file these pleadings leave would have been undoubtedly granted as was done in the case of Fuller v. Fuller, supra, and in the very well-considered case of Wadsworth v. Wadsworth, 81 Cal. 182. The stipulation therefore must be treated not as a consent to a divorce decree nor as a consent to confer jurisdiction, but rather an agreement by counsel which merely avoids the necessity of the more formal application to the court.

It is manifest that some portion of the time relied upon by the husband for the accrual of his cause of action was occupied and taken up by the original suit brought by the -wife—that is, from October 5th, 1908, the day of the filing of her petition, to March 20th, 1909, the day on which the husband had a right to file an independent petition. It was so held in Weigel v. Weigel, 63 N. J. Eq. (18 Dick.) 677; affirmed, 65 N. J. Eq. (20 Dick.) 398, and in Johnson v. Johnson, 65 N. J. Eq. (20 Dick.) 606. If this rule were applied to this case there would be a considerable reduction from the time during which the husband’s cause of action was in process of maturing, and his cross-petition would have been prematurely filed. There are many cases to this effect, most of which are collected by Yice-Chancellor Grey in the Weigel Case. There is, however, an exception to this rule which the vice-chancellor comments upon in the Weigel Case within which the ease at bar clearly comes, and’that is that the petitioner cannot insist upon the enforcement of the rule in a case in which it appears to the court that his or her original petition was filed and prosecuted in bad faith. In the present case the wife, in the most formal and solemn manner, formulated charges of matrimonial offences against her husband which were sufficient, if true, to have led to his indictment and punishment by the criminal courts. These were repeated and enlarged upon in her amended petition, and again referred to less virulently in the replication to the cross-petition. One would naturally expect that some attempt would have been made to substantiate these charges, but at the hearing she not only abandons her own attack, but declines to produce any evidence by way of defence against the attack of her husband. These facts show that the petition of the wife was filed and prosecuted in bad faith and that she ought not to be allowed to set up her own delinquencies in bar of her husband’s right.

Having found the facts in favor of the defendant on his cross-petition, it remains only to state, in conclusion, that there is nothing in the law which stands in the way of granting him the relief prayed for in the cross-petition, and I will advise a decree in his favor.


text:
    The Federal Trust Company v. Albert A. Guigues et al.
    [Decided November 24th, 1909.]
    1. "Where a -building was commenced before the execution of a mortgage on the property, valid lien claims have priority over the mortgage.
    2. Where a hardware materialman’s contract required complete delivery for thirty days before payment on an architect’s certificates, and the materialman, on visiting the property to make the final delivery, found considerable of the hardware furnished scattered throughout the second story of the building, whereupon he collected such material, refinished part of it. and delivered it with the final installment to the architects, but did not obtain a certificate from them until after they had been discharged by the owner, there was no sufficient delivery to constitute a compliance with the contract so as to entitle him to a lien.
    3. An action will not lie to recover moneys due on a building contract providing for an architect’s certificate as a condition precedent, unless the certificate is produced or its production excused by the evidence.
    4. A mechanics’ lien claimant, having contracted to finish the plumbing-, gasiitting- and metal work of a dwelling-house for $2,950, completed the work, except connecting- the kitchen range, on September 25th, 1907. The owner did not furnish the range until March, 1908, whereupon claimants, on March 25th, connected it by the services of two men for four hours, their lien claim being filed June 25th, 1908.—Held, that the work done on March 25th was not trivial, but a substantial portion of the contract required to complete the same, and was therefore sufficient to start anew the time within which claimant was required to file his claim.
    5. The testing of the plumbing, gas, and metal work in a building to ascertain whether it was properly done was a part of the contract for which no charge could be made for extra work.
    0. Where a member of a firm of architects employed to supervise the construction of a building visited the premises at a time when no work was being done, and bad not been done for two or three months, the visit was insufficient to keep the architect’s lien for services alive.
    7. Where an architect visited the premises on which a building he was supervising was being erected to take care of the place, and see that things were safe and to serve notice on the contractors to finish their work, if anyone was working-, such acts were within his duties as architect, and were sufficient to start a new period for filing the lien.
    8. Where the carpenter contractor for the construction of a building always stood ready to finish the work, but was not permitted to do so, both because of a difficulty between the owner and the architects and their subsequent discharge, and the fact that the contractor could not work under the detailed drawings submitted, and also because of the owner’s financial embarrassment, the contractor’s failure to complete the work and to furnish an architect’s certificate, as required by the contract, was no objection of his right to a lien.
    9. Where property covered by a mortgage consisted of a dock lot used by the owner as a landing place for his yacht and separated from the mansion-house, also mortgaged, by a public highway, the house lot being bounded on three sides by a street, lien claims for labor and materials furnished in the construction of the house would be regarded as liens on the house and lot only as against the mortgage.
    10. The Mechanics’ Lien law (P. L. 1898 p. 5Jf6 § 27), declaring that when the curtilage of a lot on which a building is erected shall not be surrounded by an enclosure separating it from adjoining lands of the same owner, then the lot on which the building shall extend shall be such tract as in the place of its location is designated as a building lot, &c., but in no case to exceed one-balf acre, had no application to lien claims for work and materials on a mansion-house located on a lot bounded on three sides by public streets and on the other by the property of an adjoining owner and separated from a water lot, which the owner used as a landing place for his yacht, by a public street.
    11. Where several mechanics’ lien claims for labor and material performed in the construction of a building were all of one character, and there was nothing in the circumstances which would authorize priority of one over the other, they were all of equal rank.
    On final hearing on bill, answer, replication and prooís.

      Mr. John B. Hardin, for the complainant.

      Mr. Charles C. Ilommann, for Kelly & McAlinden Company.

      Mr. Albert C. Bedrick, for the Cort Hardware Company.

      Mr. Michael Tansey and Mr. Joseph A. Connolly, for Pigott & Mathesins.

      Mr. James 3. Wight, for Ira E. Crouse.
   Howell, V. C.

This suit is brought to foreclose a mortgage made by the defendants Albert A. Guigues and wife to secure the payment of the sum of $10,000 and interest. The mortgage is dated May 27th, 1907, and was duly lodged for record in the clerk’s office of the county of Middlesex on May 28th, 1907. It covers two tracts of land in Perth Amboy. The first is bounded by Eector, Lewis and Water streets, and lands of one Eunyon; the second is a dock lot lying easterly of the first lot and separated from it by a narrow public highway called Water street. At the time of the making of the mortgage there was in course of construction on the first tract a dwelling-house of large proportions, the contract price of which was upwards of $33,000, and towards the erection of which four of the defendants claim to have performed labor and furnished materials. The debts claimed by them respectively therefor not having been paid, they filed lien claims under the provisions of the Mechanics’ Lien law against both tracts, and in consequence were made parties defendant to this suit.

The building was commenced before the execution of the mortgage and the situation is therefore such as that if the lien claims are valid under the provisions of the lien law they have priority over the complainant’s mortgage.

Two questions are raised by the complainant against each of the lien claims. The first one concerns the validity of the claims under the lien law, and the second touches the size of the curtilage. I will take up the claims seriatim.

OORT HARDWARE COMPANY CLAIM.

This claim arises out of an agreement dated September 29th, 1906, between the Cort Hardware Company and the defendant Guigues, and provides for furnishing all the hardware for the dwelling-house in question. It provided in article IX. that the sum to be paid by the owner for the said materials was $442, to be paid to the contractor in current funds only upon certificates of the architects, but in one payment when all was furnished complete and within thirty days after the delivery. It appears that up to November 19th, 1907, the Cort Hardware Company had furnished considerable of the hardware provided for by this contract, and that the hardware had been put in place throughout 'the second story, and possibly some other portions of the building, and that there remained in the building a considerable portion which had not yet been attached. On that date the president of the company went with one of the architects to the building for the purpose of delivering the final installment of the hardware. This final installment he carried with him. When they arrived at the building they found the hardware which had not been attached to the building scattered about, and the architect, in the presence of the president of the claimant, had the hardware packed into a barrel and shipped to the claimant at Newark. The claimant’s president did not deliver the final installment, but carried it back to Newark with him, and the claimant then took into its possession all the hardware which had been shipped from the Perth Amboy house, checked it up and re-polished some of it, and then delivered the same to the architect, in whose possession the same now appears to be. I do not see how this series of facts can be construed into a delivery under the contract above mentioned. There was no final delivery, and there was no proper certificate by the architects named in the original contract, as the arbiters on the claimant’s work. It appeared in the testimony that a controversy arose between the owner and his architects which resulted in their discharge by him in the month of September, 1907. The Cort Hardware Company did procure from these architects a certificate that they had furnished labor and material in pursuance of their contract amounting to $465.53. This I understand to be the full amount of their claim, hut it was procured on February 11th, 1908, long after Pigott & Mathepius had been discharged by the owner, and therefore as a certificate under the contract could have no force or effect. It is well settled that an action will not lie for moneys due upon a building contract which provides for an architect’s certificate unless the certificate is produced or its production excused by the evidence. In Byrne v. Sisters of St. Elizabeth (1883), 45 N. J. Law (16 Vr.) 213, Mr. Justice Knapp, in the supreme court, declared the rule for that tribunal. The statement made by him in his opinion touching the competency of a court of equity to grant relief relates only to some supposed fraudulent action of an architect in withholding the certificate. This court cannot give .any relief of that nature in this case for the reason that the pleadings are not properly framed for the purpose. The right claimed by the lien claimants is a legal right, and it must be dealt with in this court, as in a court of law, upon legal principles. The claim was drawn into this court not by reason of anything in the pleadings or in the jurisdiction of the court over the legality and validity thereof, but because the pleadings required a settlement of the question of priorities, and this question drew along with it the question of validity. Two years later Vice-Chancellor Van Fleet in this court came to the same conclusion in the case of Kirtland v. Moore (1885), 40 N. J. Eq. (13 Stew.) 106. This rule-was announced recently by the court of errors and appeals in Sheyer v. Pinkerton Construction Co., 59 Atl. Rep. 462.

The result is that this claim must be disallowed

KELLY & M’ALINDEN COMPANY CLAIM.

This claim arises out of a contract for plumbing work upon the house in question. The plumbing contract was first taken by a man named Joyce, who failed, and Kelly & McAlinden Company undertook to finish the work. They made a new and special contract with the owner on January 28th, 1907, which provided that they should furnish all the work for the completion of the plumbing, gasfitting and metal work required for the house for $2,950. Their payments were to be made as the work progressed, monthly, to the amount of eighty per cent, of the value of labor and materials furnished. The remaining twenty per cent, was to constitute the final payment.

The first objection to this claim is that the lien had expired before the claim was filed. The lien claim was filed June 29th, 1908. Kelly & McAlinden swear that the last work that was done by them on the contract was done March 25th, 1908. That turned out to be four hours’ work by two men who were engaged in connecting up the kitchen range. They had done no work on the building previously to this time since September 25th, 1907. The reason why they were delayed in finishing their work was that the owner did not furnish the range until March of 1908; hence the claimants could not put it in place and connect it up. In my opinion the work that they did on March 25th, 1908, was not trivial, but was a substantial portion of the contract, and was required in order to finish it up. I therefore conclude that the lien claim was filed in time.

During the progress of the work the architects furnished to the Ivelty & McAlinden Company two certificates, the first one for $1,293.87, and the second one for $1,018.13, making altogether $2,312, on account of which they were paid $1,000, leaving due to them $1,312 on account of the contract. Their lien claim includes $202.36 for extra work, a portion of which should be disallowed. The items charged under date of March 14th were for testing the work which had been done by Joyce, and should be disallowed, because it is part of the contract to see that the work is properly done, and although there was some evidence that the architects liad given an order for it the fact turned out to be that the testing was done before the order was given. These two items, amounting to $7.30, will therefore be disallowed. The item charged under date of March 25th, $33.60, appears to have been ordered by the architect as agent for the owner, and should be allowed. The item of March 13th to 30th, amounting to $106, appears to me to be a part of the original contract, and should be disallowed; and the same is true of the charges under date of March 28th to April 3d, amounting to $18. They are part of the original contract. Concerning the remaining items there is very little satisfactory evidence'Outside of the general statement that they were ordered by the architect.

My conclusion as to this claim is that it should be allowed for $1,312, and in addition thereto the items for extra work, excepting those which are disallowed.

PIGOTT & MATHESIUS CLAIM.

The claimants in this case are the architects of the building. Their claim was filed January 31st, 1908. The principal objection to this claim is that the lien had expired before the lien claim was filed. Mr. Pigott, one of the firm, visited the premises on November 19th, 1907, in company with Mr. Birkenmeier, president of the Cort Hardware Company, but inasmuch as no work was being done at that time, and apparently there had been no work done on the building for some two or three months previous, it can hardly be claimed that that visit was sufficient to keep the lien alive. The visits made by Mr. Pigott to the building before that time were made in October. His account of railroad expenses shows that he was at the building October 17th and 24th. Previous to that Mr. Pigott was at the building on September 3d arid 27th; at that time the plumber was working, the stucco man was fixing up defects • in his work, and another man was engaged in putting on weather strips; but when he went there in October the building was practically at a standstill. He says, however, he had to go down there to see that things were safe, to take care of the place, to see if anyone was working, to serve notice on the contractors to finish their work. These were all within the scope of his duties as architect, and I think are sufficient to give vitality to the lien. The owner, Mr. Guigues, became dissatisfied with the work of Pigott & Mathesius, and some time in the month of December, 1907, he discharged them from his employment on this work. It is difficult from the testimony to determine who was at fault in this matter. The burden of proof is on Mr. Guigues. The evidence which he has adduced does not satisfy me that the architects did not comply with their contract.

Their claim will therefore be allowed for the sum of $1,229.41.

IEA E. OBOUSE CLAIM.

The lien claim in this case was filed on June 23d, 1908, and the testimony of the claimant is that the last work that he did on the house was about May 12th of that year. This claim arises out of a contract made on May 22d, 1906, between Ira R. Crouse and Albert A. Guigues, by which Crouse agreed to perform all the carpenter, mason and excavation work for the Guigues residence as shown on the specifications, for the sum of $16,526. The payments were to be made monthly to the extent of eighty per cent, of the value of the work performed up to the date of the architects’ certificate, and the twenty per cent, held back was to constitute the final payment.

Mr. Crouse was never permitted to finish his contract, although he always stood ready to do so. The difficulty arose out of a controversy between the owner and the architects and their subsequent discharge from the owner’s employ, and also from the fact that the claimant, Mr. Crouse, could not work from the detailed drawings, his reason being that the trim and wainscoting which was specified for the first floor of the house did not correspond with the requirements of the specifications prepared by the architects. There was another reason which arose out of the financial embarrassment of the owner. Mr. Crouse’s work appears to have proceeded properly up to the time when the difficulties above mentioned became acute. He holds an architect’s certificate for $800, dated April 27th, 1907, which has never been paid, and it appears that he never received any money from the owner after the date of that certificate. He worked on the building as long as it was possible for him to do so. The strained relations between the owner and the architects and their final discharge appears to have put it out of the power of Mr. Crouse to proceed any further. A Mr. Enstice was employed by the owner to superintend the construction of the building after the architects had been discharged, and as such he was an agent representing the owner, but he found it impossible to give proper instructions to Mr. Crouse, and Mr. Crouse was therefore obliged to stop work. This state of facts excuses Mr. Crouse from the production of any architect’s certificate. In fact, there were no architects who could give him a certificate; certainly the architects agreed upon could not, and his claim will therefore be allowed as stated in the lien claim filed by him in the Middlesex county clerk’s office. The amount stated by him in his testimony is $9,297.14.

All these claims will bear interest, and if counsel cannot agree upon .the amount I will undertake to settle it.

CURTILAGE.

The property covered by the complainant’s mortgage includes not only the tract of land bounded by Water, Lewis and Eector streets, on which the mansion-house is situated, but includes alsc a dock lot abutting upon Earitan bay, but separated from the plot on which the mansion-house stands by a narrow street or driftway, which appears to be also a public highway. There is a controversy between the mortgagee and the lien claimants as to the size of the curtilage upon which the lien claims which have been allowed are-to stand. It is quite apparent that the statute (.Mechanics’ Lien law §21) does not apply to the case, and that we must have recourse to the decisions which have been made on the subject in our state. In Derrickson v. Edwards, 29 N. J. Law (5 Dutch.) 468, it was held that the curtilage intended by the act to be subjected to the lien should be so much land as might be necessary lor the convenient and beneficial enjoyment of the building on which the claimant’s work was done. There seems to be no natural and necessary connection between the lot of land on which the mansion-house is erected and the dock lot separated from it by Water street. It appears that the owner used the dock lot as a landing place for his yacht, but it had no necessary connection with the use of his dwelling-house. The mansion-house lot is surrounded on three sides by streets, and is bounded on the north by lands of an adjoining proprietor. There are on it the dwelling-house and a building used as a garage and coachman’s quarters. This plot seems to be complete in itself and not to require the dock lot as a precessaiy adjunct for its enjoyment. The lien claims therefore will be bold to be liens only on the mansion-house lot.

It need hardly be said that the lien claims are concurrent liens upon the ¡iremises to which they have been confined. They are all of one character and there is nothing in any of the circumstances which could operate to give one priority over the other. See Mechanics3 Lien law § 20.


text:
    Lehigh Valley Railroad Company et al. v. New York and New Jersey Water Company.
    [Decided December 2d, 1909.]
    1. Where a water company, without authority, laid its pipes on the towpath of a canal company, ousting the canal company from possession thereof, there was an ample remedy at law in trespass or ejectment, and a mandatory injunction which alone would give adequate equitable relief would not be granted; such injunction rarely issuing as a provisional remedy, and not being permitted to usurp the legal remedy of ejectment.

      2. While equity will protect an easement by injunction, it must clearly appear that there is an easement, and its character and extent must be plain, and a preliminary injunction will not be granted to protect an alleged easement of a canal company in adjacent land upon which earth from the canal had been deposited from the laying- of a water company’s pipes therein, where the extent of the canal company’s easement, whether to the width of the actual bank or to the width of a strip of land upon which the earth was deposited at the time the canal was built, does not appear, and the character of the water company’s rights therein are not shown.
    3. It appearing that the canal company had not for several years used the canal for purposes of transportation, it simply being an open, unused ditch, with a towpath on one side over which the public had a right to pass, but did not pass, the laying of the water pipes in the spoil bank on the adjacent 'land, or on the towpath at overhead crossings, was not shown to have caused irreparable damage justifying injunctive relief.
    On motion for preliminary injunction.

      Mr. George Ifolmes; for the complainants.

      Mr. Robert H. McCarter, for the defendant.
   Howell, Y. C.

This suit concerns the rights of the parties hereto in the spoil bank and towpath of a portion of the Morris canal which lies east of the Hackensack river and the Newark bay. When the Morris canal was extended from the Passaic river to the Hudson river, after crossing the Hackensack river, the line runs in a northerly and southerly direction easterly of and in some places quite near to the easterly bank of the Hackensack river and the easterly shore of Newark bay; and the contest is over the rights of the parties from the point where the canal leaves the Hackensack river down to a point in the city of Bayonne. Throughout this distance, the canal company, at the time of its construction, did not take condemnation proceedings to obtain the land necessary for the construction of its canal, but made an agreement with the property owners, which is dated August 15th, 1834, the fourth paragraph only of which is important to this litigation. It reads as follows:

“Fourth. The Morris Canal and Banking Company shall have the right to deposit any surplus earth or stone or other matter produced by the excavation and construction of the canal upon the adjacent lands, occupying- no more of the adjacent lands than may be reasonably necessary for that purpose, and the said Morris Canal and Banking Company shall pay or tender to the said several owners at such rate per acre for the lands thus used as shall be fixed in and by the award of the aforesaid arbitrators, the said company having the right to the occupancy of the adjacent lands for the aforesaid purposes of depositing- thereon the surplus earth but the title thereto to remain in the landholders, and it is further agreed that the said company do give to the said landholders respectively on the making of this award, satisfactory personal security to be determined on in case of disagreement by the parties, by the aforesaid arbitrators, that they will make payment to the landholders, severally for the lands so occupied within five days after the completion of the canal through or across the land of each owner or proprietor adjacent to the lands so occupied as aforesaid and the earth and materials so placed on the adjacent lands are to' remain as placed by the company, and are not to be removed or disturbed by the landholders, and the said company shall have the right to preserve and maintain the same.”

The canal company, after satisfying the property owners in the manner and to the extent provided for in that agreement, proceeded to construct its canal, and instead of removing the earth taken from the excavation, deposited the same upon the lands of the abutting owners under the terms of the said fourth paragraph of the agreement. The towpath was constructed along the west bank of the canal, and the earth which came from the excavation was deposited upon the lands of the property owners west of the towpath. The bank, or pile of earth west of the towpath, is called the spoil bank. The canal company claims the right of actual possession of the canal and the towpath, and also an easement in so much of the land of the adjoining proprietors as is necessary to maintain and support the canal constructions, and that the canal company is now not only entitled to such an easement, but is in actual possession thereof. The land on either side of the canal property between the points mentioned is low, flat, marshy meadow land.

On September 9th, 1896, an agreement was entered into between the canal company and the Lehigh Valley Railroad Company, its lessee, parties of the ■ first part, and the defendant, party of the second part, by which the complainants gave to the defendant the right, so far as they had the right to do so, to lay and maintain a steel water pipe, not exceeding thirty inches in diameter, under and along the said spoil bank and towpath of the canal between the points herein above mentioned, below the surface, with the right to enter upon the spoil bank and towpath from time to time for the purpose of laying, maintaining, repairing, changing and removing said pipe as might be necessary, subject to the approval of the complainants, the defendant paying to the complainants the sum of fifty cents per running foot of pipe laid under the land actually used as a towpath by the canal company. Recently, the defendant, without the consent of the complainants, began the construction of another pipe line west of and near to the first line, and, as defendant claims, wholly under the said spoil bank, and not disturbing or impinging upon the towpath except in two places. One of these is at the overhead crossing of the Central Railroad Company, and the other at the overhead crossing of the Hudson county boulevard, in Bayonne. At these points, the abutments, which support respectively the railway line and the boulevard, are constructed immediately at the westerly edge of the towpath, and at these two points the defendant is now engaged in laying its new pipe line on the top of the towpath and next to the abutments, thus taking from the canal company a considerable portion of the towpath at these points. There remains, however, a clear width of towpath.at these two places of about eight feet.

The defendant alleges that it has procured and has in its possession instruments in writing executed by all the abutting landowners consenting to the laying of these pipe lines; that these consents are efficacious for the reason that the abutting owners hold the legal title to the abutting lands up to the westerly line of the towpath. The complainants, on the other hand, claim that they have an easement in so much of the land which is called the spoil bank beyond and outside the towpath as is necessary to’ protect the canal and the towpath; that they are in the actual possession of it; that the attempt of the defendant to lay its second pipe line without the consent of the complainants is a disturbance of their easement and that it amounts to a continuing trespass, and that therefore the situation is within the injunctive jurisdiction of this court. They pray that tlie defendant may be enjoined from further proceeding with the construction of its second line, not only in the spoil bank, but also on the top of the towpath at the points where the Central railway and the Hudson county boulevard respectively cross the canal. The .defendant has answered and has submitted answering affidavits by which it appears that it has been permitted by the complainants to lay over seven miles of the second pipe line without obstruction, and that they assisted the defendant therein by giving it the use of their canal boats to carry the pipe to this section of the canal and to distribute it along the same; that having acquired from the owners of the abutting lands their consent to the laying of the second line, it has a right to proceed with its construction against the wish and without the consent of the complainants, it, however, taking all precautions necessary to prevent any injury to the property of the canal company. It says further that the portion of the canal along which this second line is being laid is not now and has not for years past been used or operated as a canal, and that such use and operation have been abandoned by the complainants; that this section of the canal has been permitted to fall into disrepair, and that therefore no injury can come to the complainants by reason of its occupancy of the spoil bank and the two short sections of the towpath above mentioned, and it demurs to the bill upon the ground that this court has no jurisdiction, that the rights of the parties have never been settled at law, and that the complainants have an ample remedy according to the course of the common law.

It is quite apparent that at the two points where the defendant has actually occupied a portion of the towpath the action of the defendant amounts to a seizure and occupation of lands to which complainants have the exclusive right of possession. At these points there is no supervening equity which give this court jurisdiction. It is not a continuing trespass in the sense in which that term is used in giving jurisdiction to a court of equity, but according to the complainants’ own statement it is a forcible and high-handed seizure and occupation of the complainants’ lands. If the controversy wrere between two individuals nobody could contend that a court of equity could have the right to intervene. The complainants by their own statement have actually been ousted of their possession with a strong hand and their claims of right set at defiance. For such action as this the common-law courts afford complete and ample remedies by an action for trespass or in ejectment. To issue an injunction now to prevent the laying of the pipes at these points would do the complainants no good. The pipes are already laid, and nothing short of a mandatory injunction would give them the relief which they claim they are entitled to. A mandatory injunction rarely issues as a provisional remedy, and I know of no case in which a mandatory injunction has been permitted to usurp the plain and simple legal remedy by an action of ejectment.

•As to the portion of the premises which are denominated the spoil bank there is nothing in the case to indicate the character or extent of the right of either the complainants or the defendant therein. The width of the spoil bank is not defined, nor is it described with any such particularity as would be necessary for the process of injunction if they were entitled to such process. They claim that the last clause of the fourth paragraph of the agreement of 1834,

. “the earth and materials so placed on the adjacent lands are to remain as placed by the company and are not to be removed or disturbed by the landholders, and the said company shall have the right to preserve and maintain the same,”

gives them an easement in the abutting land, but whether it is to the width of the actual bank, if there is a bank there, or to the width of the strip of land upon which they deposited the earth from the canal excavation at the time the canal was built, does not appear. The whole controversy is one that, in my opinion, should be first submitted to the common-law courts. The authority will be found in the case of Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 55 N. J. Eq. (10 Dick.) 141; affirmed, 55 N. J. Bq. (10 Dick.) 593, and the cases there cited.

Chief-Justice Beasley said in Ballantine v. Harrison, 37 N. J. Eq. (10 Stew.) 561, that no case could be found in our reports purporting to hold that the mere taking possession of lands and holding them vi et armis would form the basis for the arrest of the doing of such wrong by the arm of equity. While the court of chancery will protect an easement from violation by its writ of injunction, it is hardly necessary to say that the prime requisite is that it must clearly appear that there is an easement, and the character and extent of it must be plain. Mr. Justice Depue, in Hagerty v. Lee, 45 N. J. Eq. (18 Stew.) %55, speaking for the court of errors and appeals, says that it is impossible to emphasize too strongly the rule so often enforced in that court that a preliminary injunction will not be allowed where either the complainant’s right which he seeks to have protected to limine by an interlocutory injunction is in doubt, or where the injury which may result from the invasion of that right is not irreparable. The facts do not show that the complainants are suffering or will suffer irreparable damage from the act of the defendant. While it cannot be said that the complainants have abandoned the canal in the sense in which the word “abandonment” would be used in a proceeding by the state to forfeit the charter, yet it does appear that the complainants are not using the canal and have not for several years past used it for the purposes of transportation. It is simply an open, unused ditch with a towpath on one side over which the public have a right to pass but over which nobody does pass. In this situation of disuse I fail to see how the laying of the second line of water pipe in the spoil bank can be deemed such a damage as to be beyond reparation, or, indeed, how the occupation by the defendant of the portion of the towpath at the two overhead crossings can be considered to be a damage that is irreparable. On either hand and in either situation I think that the complainants are not entitled to an injunction.

I will advise an order in accordance with these views.


text:
    Abraham L. Schoenfeld, &c., v. Michael Winter.
    [Decided December 14th, 1909.]
    1. Where the jurisdiction of courts of law and equity for the redress of frauds is concurrent, equity should entertain the cause and determine it on its merits, provided adequate relief cannot be obtained at law.
    2. A bill to rescind a contract relating to the sale of personal property under a lease, alleging that the contract was induced by representations which were false and which the defendant knew were false, though stating facts sufficient to support a common-law action for deceit, is cognizable in a court of equity.
    On demurrer to the bill of complaint.

      Mr. William H. Osborne, for the complainant.

      Mr. William A. Lord, for the defendant.
   Howell, Y. C.

The bill in this case is filed to procure a decree rescinding a contract alleged to have been made between the defendant, Winter, and two persons as partners, one of whom is dead, the complainant being the survivor. The contract related to the purchase and sale of personal property and a lease. At the time of the filing of the bill, a motion was made for a preliminary injunction to restrain an action at law arising out of the contract relation. This motion was denied upon the ground that the supreme court had practically decided that the action was properly brought. A demurrer is now interposed to the bill upon the ground principally that the cause of action set out therein is one which is cognizable in the courts of common law.

The bill sets out a cause of action which would undoubtedly be triable in the common law courts in an action for deceit. It alleges that the contract was induced by representations which were false, and which the defendant knew were false at the time the contract was made. These allegations are admitted by the demurrer, and while the bill sets out a common law action for deceit, this does not interfere with the jurisdiction of equity. In order to set aside a contract founded in fraud, it is only necessary in equity to prove that the representation upon which the action is founded is false, that it is material, and that damage has ensued; while at the common law the proof must go to the exent of satisfying the jury that the defendant knew that the statement relied upon was false. It will therefore be seen at a glance that the remedy in equity is much broader and much more efficient than the remedy at law could be. It was held in Morse v. Nicholson, 55 N. J. Eq. (10 Dick.) 705, that in a case where the jurisdiction of the courts of law and equity for the redress of frauds was concurrent, the court of equhy should entertain the cause and determine it upon its merits, provided that adequate relief could not be obtained at law; and this, I take it, is a general rule which ought to be applied in the discretion of the court to cases of fraud where there are concurrent remedies. It was so held in Eggers v. Anderson (Court of Errors and Appeals), 63 N. J. Eq. (18 Dick.) 264 There Mr. Justice Dixon recites the English eases and declares that our state has given her adherence to the doctrines of the English courts. See, also, Dubois v. Nugent, 69 N. J. Eq. (3 Robb.) 145.

There is, however, a limitation upon this doctrine which is found in the case of Krueger v. Armitage, 58 N. J. Eq. (13 Dick.) 357, and in Polhemus v. Holland Trust Co., 59 N. J. Eq. (l4 Dick.) 93; affirmed, 61 N. J. Eq. (16 Dick.) 654. In Krueger v. Armiiage the complainant filed his bill to recover damages accruing out of what was claimed to be a fraudulent sale of stock. There does not appear to have been any prayer for the rescission of the contract, which possibly differentiates the case from the one in hand. The report shows that it was merely a bill for damages based upon a false representation of fact, there being no equitable remedy appealed to except the recovery of damages. Vice-Chancellor Emery held that in that case the jurisdiction should not be exercised because it had been challenged in limine, and that the assessment of damages could be made by a jury as well as by this court. In Polhemus v. Holland Trust Co., a transferee of bends, issued by a foreign corporation, attempted to recover in equity the amount paid by him for the transfer upon the sole ground that the sale was fraudulent, and therefore the complainant had the right to rescind the transaction and recover back his money; and Vice-Chancellor Reed held that the recovery of money paid by the inducement of false representations was not within the scope of modern equity jurisdiction. These cases were approved by the court of errors and appeals in Polhemus v. Holland Trust Co., 61 N. J. Eq. (16 Dick.) 654.

In these two cases it will be observed that there was no ground of equity jurisdiction except the false representation of fact. But in the- case in hand the complainant appeals to the court to declare that the contract induced by fraudulent representations should be rescinded and canceled, and this upon the ground that the contract being void by reason of fraud, the complainant should not continue to rest under the obligation of any portion of it, but that he should be discharged from its performance in whole and in part. This is an equity to which the complainant is entitled if at the final hearing he is able to substantiate his allegations.

I do not now pass upon the question of the manner in which the damages shall be ascertained and measured in case the complainant shall succeed in establishing his right. This may be very properly left to the final hearing, and it may there turn out that damages, if any, are of very easy ascertainment. An examination of the bill discloses that there is no specific prayer for the cancellation of the chattel mortgage which was given by the complainant and his partner to the defendant. If the mortgage covers property which is by the bill tendered to the defendant on the rescission, it probably can make little or no difference whether the mortgage is specifically canceled or not, unless it contains some obligation which the complainant in ease of his success would desire to be relieved from.

My judgment therefore is that the demurrer be overruled, and that the defendant file his answer to the complainant’s bill in twenty days after the service upon him of a copy of the order overruling the demurrer, and if he fails to do so, the bill should be taken as confessed.