text:
    Charles S. Barton and Fannie A. Barton v. Levi K. Slifer.
    [Submitted April 15th, 1907.
    Decided April 17th, 1907.]
    1. Where an owner of land lays it out into streets and lots, and adopts a restrictive covenant as to the building line, and inserts the covenant in all deeds as an exaction from all purchasers for the benefit of each, the equitable right to enforce the covenant enures to each purchaser, irrespective of when he purchased.
    2. Complainants showed a right to enforce a restrictive building covenant where their bill averred the purchase of the original tract of land by an association, its subdivision into lots, the adoption of a general building scheme to secure an unobstructed view, &c., to the lot purchasers, the adoption of the restrictive covenant, and its insertion in all deeds made by the association.
    3. Where the deeds to all lots in a town contained a uniform restrictive building covenant, complainants’ right to enforce it against a neighboring owner was not lost because there had been several violations of the covenant, where the violations in no substantial way affected their property, and did not show any intention to abandon the general plan in the district wherein the parties’ property was located.
    4. Complainants were not estopped by laches to enforce a restrictive building covenant where, when defendant attempted to violate it, they promptly notified the foreman of the work that their rights were being violated, and where a bill was thereafter filed as quickly as it could be procured.
    On bill for injunction.
    The bill is filed by complainants to restrain defendant from the erection of a building in violation of the following restrictive building covenant:
    “And also under and subject to the express conditions and restrictions that no building of any description whatever shall at any time be erected within ten feet of the front line of said avenue, nor within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots tlie owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within four feet of the outside lines of said lots, nor within ten feet of the front lines thereof), and also that no building, or any part thereof, erected upon the said lot or lots, shall be used or occupied as a livery or sales stable, dye-house, bone-boiling or skin-dressing establishment, soap, candle, glue, starch, lamp-black, poudrette or fish guano manufactory, slaughter-house, piggery or tannery. Nor shall any building be used or occupied as a drug store, without the written consent of the said party of the first part hereto.”
    The act sought to be enjoined consists of the violation of that part of the covenant prohibiting the erection of a building within four feet of the side line of defendant’s lot.
    In the year 1879 the tract of land which now comprises Ocean City, Cape May county, was a wild beach and was purchased by the Ocean City Association and laid out in streets and lots with a view to the establishment of a Christian seaside resort. To that end the covenant in question, with other covenants, was adopted by the association and inserted in all deeds made by it as a part of a general scheme adopted by it for the benefit of the entire tract with the purpose of securing, among other things, a space of at least eight feet between all buildings to afford light, air, view and fire protection.
    The lot now owned by complainants was conveyed by the Ocean City Association to John C. Lake, by deed dated February 3d, 1885. The lot now owned by defendant was conveyed by the Ocean City Association to Jacob B. Graw, by deed dated July 21st, 1886. The deed held by defendant expressly recites that the conveyance is subject to the operation of the covenant above referred to. ■
    The northeasterly line of Ninth street forms the southwesterly side line of the two lots in question, and the lot owned by defendant is next oceanward of that owned by complainants.
    A building has been erected on the lot owned by complainants, and that building is located on the lot in conformity to the requirements of the covenant. The proposed building of defendant, if erected of the width intended, will operate to obstruct the view and air to complainants’ lot to a greater degree than would be the ease if the building should be erected in conformity to the restrictive covenant.

      This cause lias been heard, at the return of an order to show cause for a preliminary injunction, on amended bill and affidavits and answering affidavits.

      Messrs. Bourgeois & Sooy, for the complainants.

      Messrs. Thompson & Gole, for the defendant.
   Leaming, Y. C.

When an owner of a tract of land lays it out into streets and lots and adopts a restrictive covenant of the nature of the one now in question with a view to secure the.defined conditions named in the covenant for the benefit of the entire tract which he seeks to develop, and inserts the covenant in all deeds as a part of the defined scheme and as an exaction from all purchasers for the benefit of each purchaser, the equitable right to the enforcement of the covenant enures to each purchaser irrespective of the time of his purchase. Under the conditions named the benefit to be derived from the covenant as a part of the general scheme necessarily enters into the consideration of each purchase, although the covenant may, in terms, only bind each purchaser and his heirs and assigns.

It is urged on behalf of defendant that the present amended bill and annexed affidavits do not afford sufficient evidence of the conditions above stated to warrant the issuance of the preliminary writ sought. While the amended bill and affidavits annexed to it are not as explicit in details as might be desired, I entertain the view that the averments are sufficient to bring complainants’ case within the rule stated. The amended bill shows the purchase of the original tract by the Ocean City Association and its subdivision into lots for sale and the preparation and filing of a map showing the lots thus defined and the adoption by that corporation of “a general building scheme for the purpose of securing the unobstructed view and light and air,” and the adoption of the restrictive covenant now in question and the insertion of that covenant in all deeds which have been executed by the corporation. The affidavit of S. Wesley Lake, annexed to the amended bill, sets forth that the corporation was organized for the establishment of a Christian seaside resort, and that the corporation inserted the covenant in question in all deeds made by it in order that the place might-be more desirable as a place of residence, and that the object of the corporation was to make it impossible for the city to be built up solid and to secure a space of eight feet between all buildings for the circulation of air and the preservation of view and fire protection for the enjoyment of all people, and that over seven thousand lots have been sold by the corporation, and that no lot has been sold without the covenant in question being embodied in the deed of conveyance. None of these averments are controverted.

It is also contended on behalf of defendant that there has been such a departure from the general scheme designed to be preserved by the restrictive covenant as to amount to a waiver of the right to its enforcement.

The record discloses that the territory extending from Eighth to Ninth street, in Ocean City, has, in recent years, become the business portion of the city. In that territory the covenant in question has been frequently violated. Some twelve buildings have been there erected in disregard of the covenant, some as to the front building line and some as to the side lines. But the amended bill alleges that the territory extending southwesterly from Ninth street to Fourteenth street, and from the ocean to the bay, in which territory there are now three hundred and eighty buildings, of which three hundred and thirty are residences, is essentially the residential portion of the city, and that in that territory the covenant has been preserved. The side lines of the lots in question are on Eleventh street, which street runs northwesterly and southeasterly from the ocean to the bay, and is approximately the centre of the territory referred to in the bill as the residential portion of the tract. The answering affidavits point out six buildings within the territory between Ninth and Fourteenth streets which are claimed to be located contrary to the requirements of the covenant. One of these is on Ninth street and another on Asbury avenue near Ninth street. These two buildings are approximately two blocks distant from complainants’ lots and are on other streets, and are adjacent to the territory which has been referred to as the business section of the city, and it is manifest that any violation of the covenant occasioned by these two buildings in no way affects the desirability of complainants’ property. A third building referred to as between Ninth and Fourteenth streets is the Steward building, which building is located on the east corner of Twelfth street and Asbury avenue. It is averred that the porch posts of that building are flush with the side line of Twelfth street. As to this building it may be said that it is by no means certain that the location of the porch posts as pointed out operates as a violation of the covenant. But, without determining that question, it will be observed that the location of the Steward building, like the two buildings already referred to, is on streets other than that on which complainants’ property is located, and is more than a block distant, and in no way affects the desirability of complainants’ property. The fourth building pointed out by defendant’s affidavits is at Twelfth street and Asbury avenue. This, like the other properties already referred to, is too distant from complainants’ property to in any way affect its desirability. The fifth violation of the covenant referred to as within the residential district is one now under construction at Eleventh street and Bay avenue, which building is being erected on the line of Eleventh street. The map filed by defendant does not disclose Bay avenue. It is evident that this structure must be many blocks distanti from complainants’ property. The sixth violation of the covenant referred to as within the territory defined as residential is a building occupied by N. C. Clell—• and which is situated on the corner of Eleventh street and Asbury avenue. This building fronts on a street in which complainants are not interested, but the side of the building is on the opposite side of the same street on which complainants’ property is located, and one block oceanward thereof.

It is pointed out that the front of this building violates the covenant in question, and that at the side of the residence portion of the building brick steps lead from the building to the side line of the street, and the porch encroaches on the building line. Complainants’ property is in no way affected by the front encroachment, and while the porch and steps at the side of the building may operate to violate the covenant, it is manifest that any violation there may he is trivial in its nature.

This review of the testimony is made necessary to intelligently determine whether complainants’ right to enforce this covenant against defeirdant has been lost. From the review it will be observed that there have been no violations of the covenant which have in any substantial way affected the property of complainants, and but two possible violations upon the streets on which complainants’ lot is situated, and that but six violations of the covenant are alleged within a district in which three hundred and eighty buildings are erected.

I think it clear that the equitable right of complainants to enforce this restrictive covenant has not been lost. Even though it should he conceded that the twelve violations of the covenant which have been permitted in what has been defined as the business district northeasterly of Ninth street has amounted to an abandonment, in that district, of the original scheme designed to be preserved by the covenant, it does not follow from that fact that the right to- the enforcement of the covenant for the preservation of the original scheme in a separate district where essentially different conditions prevail has been lost. Changing-conditions, such as the growth of business interests, may well modify the needs of one portion of a city to such an extent as to induce the abandonment of the general plan as to that portion without any intentional abandonment of the plan as to territory where other and radically different conditions prevail. In this view I am unable to regard the breaches of the covenant in the territory northeasterly of Ninth street as evidence of an intention to abandon the preservation of the general plan in the residential portion of the city referred to.

As to the territory southwesterly of Ninth street, which has been defined as the residential district, I entertain the view that the six violations of the covenant pointed out by defendant cannot be considered as sufficient evidence to indicate the abandonment of the original plan in the district where nearly four hundred buildings have been erected in conformity to the plan. The extremely small percentage of the breaches of the covenant which defendant has pointed out rather tends to the establishment of the fact that it has been the defined purpose of the property holders in that district to adhere to the preservation of the original plan sought to be preserved by the covenant.

I think it also clear that the equitable right of complainants to the enforcement of the covenant in question is not impaired by isolated breaches of the covenant in locations where such breaches can in no way be said to affect the desirability of complainants’ property. It is not to be expected that the courts will be appealed to for the preservation of the general scheme in localities where a complainant is without interest. It is only when the interest of a property owner is affected that, in my judgment, he can be reasonably charged with the duty of applying to the court for the preservation of the general scheme. This view is forcefully expressed by Vice-Chancellor Emery, in Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612, and I concur in the conclusions there stated by the learned vice-chancellor.

It is also claimed, on behalf of defendant, that complainants are in laches in permitting the building of defendant to become partially erected before the bill was filed. I think complainants have done all that can be reasonably required of them. Defendant is not a resident of this state. Complainants promptly gave notice to the foreman of the work that their rights were being violated, and the bill was thereafter filed as quickly as it could be procured.

A preliminary injunction will be advised, in accordance with the prayer of the amended bill.


source: Caselaw Access Project

author: Leaking, Y. C.

license: Public Domain

text:
    The Continental Compressed Air Company v. Claude S. Franklyn.
    [Submitted April 15th, 1907.
    Decided April 17th, 1907.]
    1. A garnishee by a statutory plea denying indebtedness to the defendant in attachment being entitled to raise the question at law whether the defendant in attachment could lawfully exercise an option in a contract to declare the contract void, arid thus dischar'ge the garnishee’s obligation to make payment under the contract, the garnishee was not entitled to maintain a bill .to enjoin the proceedings at law in order to obtain a determination of such question in equity.
    2. The remedial powers of a court of equity to enforce by injunction equitable rights which cannot be enforced at law may be exercised after, as well as before, judgment at law.
    On bill for injunction to restrain action at law.
    Defendant issued an attachment against the Taylor Hydraulic Air Compressed Company, limited, and served notice of garnishment on complainant. The defendant in attachment appeared, and at trial judgment was rendered against it for the amount of the debt for which the attachment was issued. Action by scire facias is now pending by defendant against complainant for the recovery of an indebtedness alleged to have been due from complainant to the defendant in attachment at the time of the garnishment. The bill now filed by complainant seeks to restrain the pending action. The demand for equitable relief is based upon the claim that the statutory plea which complainant is required to file in the pending action at law is insufficient to fully protect its rights. The bill alleges that the supposed debt which was garnished was money then due from complainant to the defendant in attachment under a certain written contract, in which contract the right was given to the defendant in attachment to exercise the option, in the event of a default of payment, to declare the contract void and return certain moneys already paid, and that such option was exercised by the defendant in attachment after the attachment was issued and the garnishment made.

      Mr. John Meirs, for tire complainant.

      Mr. Harvey F. Carr, for the defendant.
   Leaking, Y. C.

I am unable to recognize equitable jurisdiction in this cause. Where a court of law can do as full justice to the parties and to the matter in dispute as can be done in equity, this court will not stay the proceedings at law. The suggestion of equitable jurisdiction in this cause is based upon the claim that the statutory plea of complainant as garnishee, to the effect that it is not indebted to the defendant in attachment, is inadequate to enable complainant to disclose and avail itself of the conditions stated in the bill. It seems manifest that there can be no foundation for that claim. That statutory plea is treated by the courts as substantially a general issue and as sufficient to enable the court to fully determine the rights of the parties. Welsh v. Blackwell, 14 N. J. Law (3 Gr.) 55, 56. With that breadth given to the statutory issue at law, it necessarily follows that, in determining whether the defendant in attachment- could lawfully exercise the option to declare the contract void and thus discharge complainant’s obligation as garnishee to make the payments named in the contract, the law court will be controlled by the same principles which would control this court in the determination of the same question.

While I am entirely clear that complainant has no rights which may not be fully protected in the pending action at law, it may not be inappropriate to add that should it transpire that equitable rights do exist which the law courts are unable to enforce by reason of limitations incident to their procedure or rules of action, the remedial powers of this court may be extended to such conditions as well after as before judgment.

The injunction now sought will be denied.


author: Leaking, V. C.

text:
    Charles C. Spear v. Locust Wood Cemetery Company et al.
    [Submitted April 15th, 1907.
    Decided April 19th, 1907.]
    1. The act of April Sth, 1875, section 8 {Rev. p. 102; Gen. Stat. p. 350 § 8), exempts from sale under execution the cemetery lands and property of any association formed pursuant to that act or otherwise incorporated. Complainant, through his attorney in fact, sold land to a cemetery association with full knowledge that it was for use as a cemetery.—Held, that he was precluded under the statute from foreclosing the purchase-money mortgage on the land.
    2. The act of March 14th, 1851, section 10 (P. L. 1851 p. 257), exempted the lands of cemetery associations formed thereunder from sale under execution. The act of April 8th, 1875 {Rev. p. 102; Gen. Stat. p. 350), repealed the act of 1851. The act of March 14th, 1879 (P. L. 1S79 p. 318; Gen. Stat. p. 360 § 56), amended section 10 of the repealed act of 1851.—Held, that the act of 1879 does not repeal the act of 1875.
    3. The act of April 8th, 1875, section 8 (Rev. p. 1,02; Gen. Stat. p. 850 § 8), exempting from sale under execution the cemetery lands and property of cemetery associations, applies only to land of the association actually brought into use as a cemetery, though the act of May 9th, 1889 (P. L. 1889 p. Jfl8; Gen. Stat. p. 856 § ¡¡0), authorizes the holding of one hundred and twenty-five acres for cemetery purposes.
    4. The act of March 21st, 1881 (P. L. 1881 p. 158; Gen. Stat. p. 353 § 18), provides that the rents, &c., of land held by a cemetery association may be taken and sequestered and applied to the payment of judgments against the association, and the court of chancery may appoint a receiver to take and apply the rents, &c., for that purpose.—Held, that where the lands of a cemetery association not used as a cemetery are sold to satisfy a mortgage on the entire tract owned by the association, and the proceeds are insufficient to satisfy the amount due, a receiver may be appointed to take possession of the cemetery tract reserved from sale and sequester the income for application to the amount remaining due under the decree of foreclosure.
    On bill to foreclose, &e. Final hearing on pleadings and proofs.
    The bill seeks to foreclose a purchase-money mortgage made November 17th, 1902, by the Locust Wood Cemetery Company
      to complainant. Tlie defence is made that by the provisions of section 8 of the Cemetery act of 1875 (Gen. Stat. p. 850 § 8), the cemetery lands covered by the mortgage cannot be sold to satisfy the mortgage debt.

      Messrs. French & Richards, for the complainant.

      Mr. John F. Earned, for the defendants.
   Leaking, V. C.

Defendant Locust Wood Cemetery Company was incorporated April 29th, 1902, under the General Corporation act. The object for which the corporation was formed is defined in its certificate of incorporation as: “To maintain cemetery or cemeteries.” November 17th, 1902, complainant conveyed to defendant Locust Wood Cemetery Company the tract of land now in question, and at the same time that company executed to complainant a purchase-money mortgage on the land conveyed to secure the payment of a bond given by the company for a part of the purchase price. Defendant Locust Wood Cemetery Company brought into use as a cemetery a portion of the mortgaged premises and operated as a cemetery company until November 17th, 1904, when one hundred and twenty-five acres of the mortgaged premises, including the part in use as a cemetery, was conveyed by it to defendant Locust Wood Cemetery Association, the latter corporation having been formed under the Cemetery act of 1875 (Gen. Stat. p. 349), for the purpose of taking over that portion of the land. The present foreclosure of the mortgage is resisted as to the one hundred and twentjr-five acres conveyed to the latter company under the claim that the statute exempts the land from sale.

Section 8 of the act of April 8th, 1875 (Gen. Stat. p. 350 § 8), exempts from sale under execution “the cemetery lands and property” of any association formed pursuant to that act, “or otherwise incorporated.” This section is substantially the same as section 10 of the act of March 14th, 1851. P. L. 1851 p. 257. As is suggested in Rosedale Cemetery Association v. Linden Township, 73 N. J. Law (44 Vr.) 421, the purpose of this legislation is the protection and preservation of the places where the dead are buried.

The contention is made on behalf of complainant that the present mortgage, as a purchase-money mortgage, will be protected from the operation of the section. This contention cannot prevail. If complainant could be said to occupy the position of one who had taken a mortgage on lands not devoted to use as a cemetery, I entertain no doubt that the subsequent dedication of the land to cemetery purposes, without the consent of the mortgagee, could not, under our constitution, operate to impair the mortgage security. But it is impossible to give to complainant the benefit of that status. The evidence disclosed that the cemetery company tentatively arranged with complainant’s attorney in fact for the purchase of this land for use as a cemetery several months prior to the sale, and that company was permitted by complainant’s attorney in fact (who afterwards conveyed the land for complainant) to take possession and lay out a portion of the land into cemetery lots as early as August, 1903, and during that time the attorney in fact referred to was a member of the cemetery company. It is entirely clear that the sale of the land was made by complainant, through the attorney in fact, to the cemetery company with full knowledge that it was for use as a cemetery, and the mortgage must be regarded as having been accepted by complainant with a full knowledge of and acquiescence in the proposed use of the land. Under these circumstances the rights of the mortgagee cannot properly be considered as free from the burden imposed by the statute.

The contention is also made that the provisions of section 8, above referred to, are superseded by an act of March 14th, 1879. Gen. Stat. p. 360 § 56. The act of 1879 is a supplement to the act of 1851, above referred to, and amends section 10 of that act. The act of 1851 was repealed in 1875. The curious legislation thus presented is an amendment of a repealed statute. In the consideration of this statute in Newark v. Mount Pleasant Cemetery Co., 58 N. J. Law (29 Vr.) 168, 173, the court of errors and appeals finds no legislative intent to apply its provisions to cemetery corporations other than those incorporated under the act of 1851.

Having reached the conclusion that section 8 of the act of 1875 operates to exempt “the cemetery lands and property” of defendants from sale under a decree of foreclosure of the mortgage held by complainant, it becomes necessary to determine whether all the land covered by the mortgage is so exempt, and if not, what part thereof.

The evidence discloses that but a small portion of the land covered by the mortgage has been brought into use as a cemetery. About one hundred burial lots have been sold and about thirty interments have been made. The contention is made that as the act of May 9th, 1889 (Gen. Stat. p. 356 § 40), authorizes one hundred and twenty-five acres to be held for cemetery purposes, and as that exact acreage was accordingly conveyed to the Locust Wood Cemetery Association, the entire one hundred and twenty-five acres will be exempted from sale. This contention cannot be maintained. The exempting section (section 8) defines as exempt from taxation and also from sale under execution “the cemetery lands and property” of the association. I think that the only reasonable construction of the language used is that the land intended by the legislature to be exempted from taxation and from sale under execution is the land actually brought into use for cemetery purposes. With no limitation at that time existing upon the quantity of land which a cemetery company could own, the legislative intent to exempt from taxation and from sale all lands which cemetery companies might acquire cannot be reasonably assumed from the language used. The natural significance of the words “cemetery lands,” as well as the manifest purpose of the legislation, indicates an intention to extend the exemptions only to lands actually used for cemetery purposes. This view of the legislative purpose led the supreme court, in Rosedale Cemetery Association v. Linden Township, supra, to construe the word “property,” as used in this section, as inapplicable to personal property.

The view here taken renders necessary the ascertainment, by exact boundaries, of the lands which shall not be subject to the decree of sale. For that purpose a master, will be appointed whose duty it will be to ascertain and report the boundaries of the land which is in use fox burial purposes. Upon the confirmation of that report a decree will be made for the sale of the remainder of the land in satisfaction of the amount due on the mortgage held by complainant. If the proceeds of sale are not sufficient to satisfy the amount due, a receiver may be appointed pursuant to the act of March 21st, 1881 (Gen. Stat. p. 353 § 18), to take possession of the cemetery tract reserved from sale and sequester the income for application to the amount remaining due under the decree of foreclosure.


author: Leaming, Y. C.

text:
    Charles T. Thatcher v. Consumers' Gas and Fuel Company.
    [Submitted April 15th. 1907.
    Decided April 29th, 1907.]
    The act of March 27th, 1878 (Gen. Stat. p. 1613 § S3), providing that whenever it may be necessary for any gaslight company to increase its bonded indebtedness it may, by a majority vote of its board of directors, with the consent of a majority of the stockholders holding sixty per cent, of the capital stock, increase the bonded indebtedness to an amount not exceeding two-thirds of the amount of the capital stock, merely conferred additional powers on such corporations as were not previously allowed to issue bonds to the amount fixed by the act, and did not restrict the privileges of those that already possessed the power to create bonded indebtedness to a greater amount than that named in the act.
    On bill for injunction.
    Defendant is a gas company of Atlantic City, New Jersey, incorporated under the General Gas act of April 21st, 1876 (Gen. Stat. p. 1608), and is about to increase its bonded indebtedness to an amount exceeding two-thirds of the amount of its capital stock. Complainant is a stockholder and seeks to enjoin the proposed corporate action upon the ground that the act of March 27th, 1878 (Gen. Stat. p. 1618), restricts the bonded indebtedness of gas companies to two-thirds of the amount of their capital stock.
    The act of March 27th, 1878, is as follows:
    “An act to enable gaslight companies, incorporated under the laws of this state, to increase their bonded indebtedness. Approved March 27th, 1878.
    “Sec. 1. That whenever it may be necessary for any gaslight company, incorporated under the laws of this state, to increase their bonded indebtedness, for the purpose of increasing their business, or- for any other purpose, then and in that case tire said corporation, by a majority vote of its board of directors, after having obtained the consent of a majority of the stockholders representing at least sixty (60) per cent, of the capital stock, be and they are hereby authorized to increase said bonded indebtedness to any amount not exceeding two-thirds of the amount of the capital stock of said company, the said increase as aforesaid to be governed by the law and pursued under the mode directed by the act of incorporation of such gaslight company.”

      Messrs. Thompson & Cole, for the complainant.

      Messrs. Bourgeois & Sooy and Mr. Charles L. Corbin, for the defendant.
   Leaming, Y. C.

The only question here involved is whether or not the act of March 27th, 1878 (Gen. Stat. p. 1618), above quoted, operates to render it unlawful for a gas company, which is incorporated under what is known as the General Gas Company act (Gen. Stat. p. 1608), to issue bonds to an amount in excess of two-thirds of the amount of its capital stock!

A brief statement of the condition of the law at the time the act now in question was enacted would seem to be essential to a perfect understanding of the legislative purpose in its enactment.

The general act for the formation of gas companies was passed at the first session of the legislature after the constitutional amendment became operative which prevented special legislation conferring corporate powers. That act contains no provision touching the right of corporations organized under it to incur debts or to issue bonds or other evidences of indebtedness. In the absence of such provision the right existed as an implied power. Lucas v. Pitney, 27 N. J. Law (3 Dutch.) 221, 228; Fifth Ward Savings Bank v. First National Bank, 48 N. J. Law (19 Vr.) 513, 523; 4 Thomp. Corp. Off. § 5697; 5 Id. 6050, 6051. The right to execute a mortgage which should include corporate franchises in its lien could not exist as an implied power. That right existed in virtue of the General Corporation act, which provided “that every corporation, as such, shall be deemed to have power * * * to mortgage any such real or personal estate with their franchises.” In 1891, and again in 1897 and 1902, the legislature passed supplements to the General Gas act authorizing gas companies formed under that act to execute mortgages on their real and personal propert)r, including their franchises. P. L. 1891 v. 271; P. L. 1897 v. 202; P. L. 1902 v. 277. These supplements were, I think, wholly unnecessary.

The act now in question was enacted two years after the General Gas act, but not as a supplement to it. At that time there existed in this state a great number of gas companies incorporated by special legislative acts. An examination of these special acts will disclose that a great number of them contain provisions authorizing money to be borrowed and bonds and other assurances to be issued therefor to an amount not exceeding one-half of the amount of the capital stock; others contain similar express powers to the amount of two-thirds of the capital stock; others contain provisions for borrowing money and issuing securities without any restriction as to amount, and others contain no provisions touching the subject of indebtedness.

With this general view of the condition of legislation at the time, the legislative purpose in the passage of the act in question seems apparent. The act is, by its title, an enabling act. It is “to enable gaslight companies, incorporated under the laws of this state, to increase their bonded indebtedness.” The provisions of the act enabling the increase of bonded indebtedness necessarily assume in the corporations to be affected by it a preexisting but restricted power to create a bonded indebtedness. This clearly negatives any possible legislative purpose to apply the operation of the act to corporations already possessing the .powers without restriction, and therefore excludes from any rational legislative intent such corporations as already possessed the power to create bonded indebtedness to a greater amount than that named in the act. I think it clear, therefore, that the act can only be regarded as an act conferring additional powers on such corporations as were previously restricted in the particulars referred to.

A preliminary injunction will be denied.


text:
    Clifton C. Shinn, receiver, &c., v. Gustave A. Kummerle et al.
    [Submitted April 11th, 1907.
    Decided May 1st, 1907.]
    The General Corporation act, sections 64 and 86 (P. L. 1896 pp. 298, SOI/), making preferments in contemplation of insolvency void, does not authorize equity at the suit of the receiver of a corporation to set aside a judgment against it in favor of the wife of its president, resulting from his activity in her behalf and the purposeless inaction of the remaining directors.
    On bill by a receiver to set’ aside a judgment.

      Messrs. Thompson & Cole, for the complainant.

      Mr. Edward A. Armstrong, for the defendants.
   Leaking, Y. C.

I am unable to reach the conclusion contended for by complainant. It is clear that to relieve against the judgment in question the provisions of sections 64 and 86 of the General Corporation act must be extended beyond their terms and beyond any scope heretofore given to these sections by the adjudicated cases.

Had the evidence disclosed a concerted plan among the directors to protect this claim by permitting it to go to judgment and then to secure a receivership to prevent the procurement of other judgments, it would be difficult to distinguish the transaction in its inherent equality from a confessed judgment or a voluntary transfer of assets by way of preference, but I am compelled from the evidence to view the judgment as the legitimate result of selfish activity upon the part of the president, in behalf of his wife, involuntarily aided by a purposeless inaction upon the part of the remaining directors. The court of chancery cannot relieve against this unfortunate and unjust situation.

I will advise a decree dismissing the bill.


author: Reaming, Y. C.

text:
    David O. Watkins, commissioner of banking and insurance, v. State Mutual Building and Loan Association. Patrick Fitzgerald v. State Mutual Building and Loan Association.
    [Submitted April 29th, 1907.
    Decided May 1st, 1907.]
    A receiver will not be appointed for a building and loan association in process of liquidation under P. L, 1904 p. 44 on the mere suggestion that the trustees appointed under the act named were men who were too closely connected with the former management of the association, together with criticism as to the manner of their selection, without substantial evidence of wrong-doing.

      On bill for receiver.

      Mr. Nelson Burr Gashill, assistant attorney-general, for the complainant Watkins, and' Messrs. J oseph Kaighn, J oseph J. Summerill and Ralph E. Bum, for the complainant Fitzgerald.

      Mr. Edward A. Armstrong, for the defendant.
   Reaming, Y. C.

T have determined not to appoint a receiver at this time. There is no evidence before me from which I can properly conclude that the interests of creditors or stockholders require it. Suggestions have been made that the trustees are men who are too closely connected with the former management of the association, and the manner of their selection is also criticised. These suggestions carry the implication that irregularities may exist which the trustees will not be free to expose. It is manifestly improper for me to base my action upon such suggestions in the absence of some substantial evidence or positive assertion of facts. I shall assume that the trustees named will do their whole duty until I am judicially informed of matters which justify a different assumption.

The bills will be retained and a receiver may be applied for at any time the necessity can be made apparent.

Creditors and stockholders will be privileged to examine the books of account and papers of the association, and may employ accountants for that purpose if it is thought desirable.


author: Beaming, Y. C.

text:
    Curtice Brothers' Company v. James E. Catts et al.
    [Submitted April 2d, 1907.
    Decided May 3d, 1907.]
    Where no adequate remedy at law exists, specific performance of a contract by defendants will be decreed on their refusal to sell tomatoes grown on certain land, as agreed, where it leaves the company helpless, except to whatever extent an uncertain market may supply the deficiency.
    On final hearing, pleading and proofs.
    Complainant is engaged in the business of canning tomatoes and seeks the specific performance of a contract wherein defendant agreed to sell to complainant the entire product of certain land planted with tomatoes. Defendant contests the power of this court to grant equitable relief.

      Mr. Jonathan W. Acton, for the complainant.

      Mr. William T. Hilliard, for the defendants.
   Beaming, Y. C.

The fundamental principles which guide a court of equity in decreeing the specific performance of contracts are essentially the same whether the contracts relate to realty or to personalty. By reason of the fact that damages for the breach of a contract for the sale of personalty are, in most cases, easily ascertainable and recoverable at law, courts of equity in such cases withhold equitable relief. Touching contracts for the sale of land the reverse is the case. But no inherent difference between real estate and personal property controls the exercise of the jurisdiction. Where no adequate remedy at law exists specific performance of a contract touching the sale of personal property will be decreed with the same freedom as in the case of a contract for the sale of land. Professor Pomeroy, in referring to the distinction, says:

“In applying these principles, taking into account the discretionary nature of the jurisdiction, an agreement for the sale of land is prima, facie presumed to come within their operation, so as to be subject to specific performance, hut a contrary presumption exists in regard to agreements concerning chattels.” Pom. on Cont. § 11.

Judge Story urges that there is no reasonable objection to allowing the party who is injured by the breach of any contract for the sale of chattels to have an election either to take damages at law or to have a specific performance in equity. 2 Story Eq. Jur. (13th ed.) § 717a. While it is probable that the development of this branch of equitable remedies is decidedly toward the logical solution suggested by Judge Story, it is entirely clear that his view cannot at this time be freely adopted without violence to what has long been regarded as accepted principles controlling the discretion of'a court of equity in this class of cases. The United States supreme court has probably most nearly approached the view suggested by Judge Story. In Mechanics Bank of Alexandria v. Seton, 1 Pet. 299, 305, Mr. Justice Thompson, delivering the opinion of that court, says: “But notwithstanding this, distinction between personal contracts for goods and contracts for lands is to be found laid down in the books as a general rule, yet there are many eases to be found where specific performance of contracts relating to personalty have been enforced in chancery, and courts will only view with greater nicety contracts of this description than such as relate to land.” See, also, Barr v. Lapsley, 1 Wheat. 151. In our own state contracts for the sale of chattels have been frequently enforced and the inadequacy of the remedy at law, based on the characteristic features of the contract or peculiar situation and needs of the parties, have been the principal grounds of relief. Furman v. Clark, 11 N. J. Eq. (3 Stock.) 306; Cutting v. Dana, 25 N. J. Eq. (10 C. E. Gr.) 265, 271; Rothholz v. Schwartz, 46 N. J. Eq. (1 Dick.) 477, 481; Gannon v. Toole (N. J. Eq.), 32 Atl. Rep. 702; Hurd v. Groch, 51 Atl. Rep. 278 (N. J. Eq.); Duffy v. Kelly, 55 N. J. Eq. (10 Dick.) 627, 629; Law v. Smith, 68 N. J. Eq. (2 Robb.) 81.

I think it clear that the present case falls well within- the principles defined by the cases already cited frorii our own state. Complainant’s factory has a- capacity of about one million cans of tomatoes. The season for packing lasts about six weeks. The preparations made for this six weeks of active work must be carried out in all features to enable the business to succeed. These preparations are primarily based upon the capacity of the plant. Cans and other necessary equipments,. including labor, must be provided and secured in advance with reference to the capacity of the plant during the packing period. With this known capacity and an estimated average yield of tomatoes per acre the acreage of land necessary to supply the plant is calculated. To that end the contract now in question was made, with other like contracts, covering a sufficient acreage to insure the essential pack. It seems immaterial whether the entire acreage is contracted for to insure the full pack, or whether a more limited acreage is contracted for and an estimated available open market depended upon for the balance of the pack; in either case a refusal of the parties who contract to supply a given acreage to comply with their contracts leaves the factory helpless except to whatever extent an uncertain'market .may perchance supply the deficiency. The condition which arises from the breach of. the contracts is not merely a question of the factory being compelled to pay a higher price for the product; .losses sustained in that manner could, with some degree of accuracy, be estimated. The condition which occasions the irreparable injury by reason of the breaches of the contracts is the inability to procure at any price at the time needed and of the quality needed the necessary tomatoes to insure the successful operation of the plant. If it should be assumed as a fact that upon the breach of contracts of this nature other tomatoes of like quality and quantity could be procured in the open market without serious interference with the economic arrangements of the plant, a court of equity would hesitate to assume to interfere, but the very existence of such contracts proclaims their 'necessity to the economic management of the factory. The aspect of the situation bears no resemblance to that of an ordinary contract for the sale of merchandise in the course of an ordinary business. The business and its needs are extraordinary in that the maintenance of all of the conditions prearranged to secure the pack are a necessity to insure the successful, operation of the plant. The breach of the contract by one planter differs but in degree from a breach by all.

The objection that to specifically perform the contract personal services are required will not divest the court of its powers to preserve the benefits of the contract. Defendant may be restrained from selling the crop to others, and, if necessary, a receiver can be appointed to harvest the crop.

A decree may be advised pursuant to the prayer of the bill.

By reason of the manner in which the facts on which this opinion is based were stipulated, no costs will be taxed.


text:
    Orlando Kelsey and Mary Kelsey v. Sarah Dilks et al.
    [Submitted May 6th, 1907.
    Decided May 7th, 1907.]
    A petition to open a final decree for error apparent in the record must be brought within the time allowed for an appeal or writ of error, where the complainant has been under no disability during that period.
    On petition to open final decree.

      Mr. Timothy J. Middleton and Mr. John J. Crandall, for the petitioners.

      Mr. J. Boyd, Avis, for the defendants.
   Leaming, Y. C.

I am unable to extend to petitioner the relief which she seeks. The petition is to open a final decree which was enrolled more than three years ago. Petitions of this nature have in this jurisdiction largely superseded bills of review and the simplicity of the procedure goes far to recommend it. Kearns v. Kearns, 70 N. J. Eq. (4 Robb.) 483; White v. Smith, 72 N. J. Eq. (2 Buch.) 697. But the principles which control the court in granting ox withholding relief appear to remain unchanged. I am unable to find any authority to justify a departure from these well-established principles. It has been uniformly held in England and in the American states that a bill of review for error apparent in the record must be brought within the time allowed for an appeal or writ of error in all cases where the complainant has been under no disability during that period. Story Eq. Pl. § 410; Dan. Ch. Pl. & Pr. § 1580 and note; 3 Encycl. Pl. & Pr. 583; Fletch. Eq. Pl. & Pr. § 932; 1 Fast. Fed. Pr. § 354. No reason suggests itself for a departure from this rule where the relief is sought by petition instead of by bill of review.

In the case at bar the relief sought is based wholly upon matters of record. No newly-discovered evidence is claimed. It is claimed that the court erred in excluding certain evidence and that the pleadings do not justify the decree entered. These are matters touching which the law defines the period of three years for review by appeal, and that period has been uniformly adopted as a period beyond which a bill of review cannot be entertained, except for newly-discovered evidence or in cases of disability.

I am obliged to discharge the order to show cause and dismiss the petition for the reasons stated.


author: Howell, Y. C.

text:
    Charles A. Wilson v. Roy F. Anthony et al.
    [Submitted April 30th, 1907.
    Decided May 2d, 1907.]
    The fraud in obtaining a foreign judgment for which equity will enjoin execution of a domestic judgment founded on the foreign judgment does not relate to the cause of action, or to evidence adduced before the foreign court, but to deception and downright fraud in procuring jurisdiction, or in preventing defendant, by , fraudulent means, 'from presenting his defence.
    ■On motion for an injunction to restrain the execution of a judgment at -law.
    On June 7th, 190-4, one Samuel L. Bailey recovered a judgment by default against the complainant, Wilson, in the supreme court of the State of New York for $1,594.31. This judgment was assigned to the defendant Anthony, who brought suit thereon in the New Jersey supreme court. Wilson pleaded to the action that he had not been served with process in the New York suit, and the action was tried upon this issue before the chief-justice and a jury on April 10th, 1906. There was a verdict for the plaintiff and an affirmance of the judgment entered thereon by the court of errors and appeals, the judgment being finally entered for $1,845.55. Wilson, in May, 1906, after the verdict in the New Jersey action, moved the New York supreme court to set aside the judgment. This motion was heard in October, 1906, and, as was stated on the argument, was denied on the ground of laches. Again, in 1907, Wilson made a second motion in the New York supreme court to set aside the service of the summons in that action and the judgment consequent thereon, which motion was likewise denied.
    The complainant now comes to this court with a bill praying that Anthony & Bailey may be enjoined from enforcing payment, not only of the New Jersey judgment, but of the New York judgment as well, on the ground of fraud.
    The fraud set out in the bill consists of allegations—first, that Wilson was not served with process in the New York suit; second, that the complaint there was withheld from the files until the day the judgment was entered, and third, that Bailey made a false affidavit to the complaint.
    The complaint charges Wilson with an indebtedness of $1,300 for two thousand bushels of corn and the husks and stalks on which the same was grown, and the affidavit verifies the complaint that the same is true to the plaintiffs own knowledge.

      Mr. Frank F. Bradner, for the complainant.

      Mr. Andrew Van Blarcom, for the defendants.
   Howell, Y. C.

The jurisdiction of this court to interfere with the enforcement of judgment at law is undoubted .and is not questioned by the defendants. The cases on the subject in our own state are so numerous that they cannot all be alluded to. In this case the court is asked to enjoin enforcement of a domestic judgment for the reason that the foreign judgment, which was its foundation, was obtained by fraud.

Mr. Justice Gummere, now chief-justice, in Fairchild v. Fairchild, 53 N. J. Eq. (8 Dick.) 678, says:

“Can this judgment rendered by a court which has jurisdiction over the parties and over the subject-matter of the litigation be ignored by the courts of this state notwithstanding the prescription of the constitution of the United States ? * * * It seems to me not, for, while this constitutional provision and the federal statutes referred to have been the subject of more or less diversity of judicial opinion, it is now entirely settled that the only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are—first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, of over the subject-matter of the litigation, and second, where the adjudication of the foreign tribunal has been obtained by fraud.”

Is the fraud alleged in the bill of complaint such fraud as is required by the decision in Fairchild v. Fairchild to override the judgment in question?

As to the first allegation, viz., that there was no service of process in the foreign jurisdiction, it is sufficient to say that it appears by the bill that this has already been adjudicated against the complainant not only in our supreme court but in our court of errors and appeals, and twice in New York in the original suit, and on the argument complainant’s counsel felt compelled to admit that he must discuss the case as if service had been undoubtedly made upon the complainant in New York. Neither do I think that the complainant can avail himself of the withholding of the complaint from the files until the entry of the judgment. I think we must assume, in the absence of evidence to the contrary, that the mere procedure which resulted in the entry of the judgment in the New York court was regular and in accordance with the law of that state.

I am quite as confident that the third cause of complaint has as little foundation in law as the other two.

A careful examination of the affidavits submitted with the bill, taken in connection with the facts disclosed by the defendants’ affidavits, does not satisfy me that there was any fraud practiced by Bailey. Neither am I convinced by these depositions that Wilson had a clear and unmistakable defence to the action in New York. But suppose there was a defence made out, it could not avail Wilson unless he could also show fraud. How then does the case stand?

An attempt was made to convince this court of the fact of fraud by offering to show that the New York judgment was unjust; that instead of a judgment for the plaintiff therein the real fact was that the balance of account was in favor of the defendant, and that the judgment was therefore the product of false evidence, in short, of perjury.

“To secure the interference of equity it will not suffice to show that injustice has been done by the judgment against which relief is sought; it must appear that the party has an equitable defence of which he could not avail himself at law or had a good defence at law of which he was ignorant until after the time for making defence at law had passed, or that he was prevented from making his defence by fraud or artifice of his adversary, or by fraud, accident or mistake unmixed with any negligence of his own, or that his ground of interference is a matter of pure equity cognizance.” Brick v. Burr, 47 N. J. Eq. (2 Dick.) 189 (Vice-Chancellor Green).

Similar language was used by the court in Mechanics Bank v. Burnet Manufacturing Co., 88 N. J. Eq. (6 Stew.) 486. There the allegations were non-service of process and'no indebtedness. The court refused to consider these grounds, but enjoined the judgment on another ground.

There is no allegation here that the plaintiff in the New York suit in any way prevented the defendant from making his defence there. The fact of service has been adjudicated against him. He had his opportunity to make his defence which he neglected to avail himself of, and now no mere allegation that the judgment is for too large an amount can move a court of equity. In fact, a judgment obtained by perjured testimony, without other matters of equitable cognizance, could not avail the complainant on this motion.

Chancellor Kent so held in Smith v. Lowry, 1 Johns. Ch. 320, and this case has been approved on this point in Cairo and Fulton Railroad Co. v. Titus, 27 N. J. Eq. (12 C. E. Gr.) 102; Hannon v. Maxwell, 31 N. J. Eq. (4 Stew.) 318, and Dringer v. Receiver, 42 N. J. Eq. (15 Stew.) 573, where Vice-Chancellor Van Fleet approves of the statement made by Mr. Justice Miller in United States v. Throckmorton, 98 U. S. 61.

“The acts for which a court of equity will, on account of fraud, set aside or annul a decree between the same parties rendered by a court of competent jurisdiction have relation to frauds extrinsic and collateral to the matter tried by the first court and not to a fraud in the matter on which the decree was rendered.”

Great stress was laid on the argument by complainant’s counsel on two recent English cases; Abouloff v. Oppenheimer, 10 Q. B. Div. 295 (1832), and Vadala v. Lawes, 25 Q. B. Div. 310 (1890), were, respectively,' actions at law upon foreign judgments, one rendered by a Russian court and the other hy an Italian court, and in each case it was held that the English courts would inquire into (he fact of perjury committed in the original action. If they have any pertinence whatever to the matters in controversy here they show that when the New York judgment was sued upon in the New Jersey supreine court the defence of fraud might have been set up and litigated, and that therefore the complainant is barred from again raising this issue.

These cases are severely criticised by Judge Wallace in the circuit court of the United States for the southern district of New York, in Hilton v. Guyott, 42 Fed. Rep. 249, as being in conflict with the Throckmorton Case above cited, which has been so strongly approved in this state, and for the further reason that the authorities cited do not sustain the proposition. In my opinion they must be held to have engrafted on the Duchess of Kingston’s Case (2 Sm. Lead. Cas.) a modification of the rule there laid down, which does not appear ever to have been hinted at in our courts.

I therefore conclude that the fraud referred to in Fairchild v. Fairchild, supra, does not and cannot relate to the eause of action or to evidence adduced before the court in the foreign jurisdiction, but does relate to deception and downright fraud in procuring jurisdiction or in preventing the defendant by fraudulent means from presenting his defence. And inasmuch as the case does not show any fraud in the institution of the suit or in obtaining jurisdiction, or that the defendant was in any way hindered by the plaintiff from appearing and defending the action, or from producing such witnesses as had knowledge of the facts, the injunction prayed for must be denied.


text:
    United States Fidelity and Guaranty Company v. City of Newark et al.
    [Submitted May 14th, 1907.
    Decided May 18th, 1907.]
    1. P. L. 1892 p. 869, creating a lien on funds due public contractors for the benefit of laborers and materialmen, and providing for the enforcement of such lien, does not contemplate an action in the chancery court by the original contractor against the municipality.
    2. P. L. 1892 p. 869 creates a lien on funds due municipal contractors for the benefit of laborers and materialmen, which sections 1 and 5 declare shall extend to the full extent of the claim or demand and to the extent of the liability of the contractor for the claim preferred.—Held, that a proceeding to enforce such lien was a proceeding m rem limited to a determination of the lien claims against the contractors, and to the application of the funds due the contractors from the municipality to the extent necessary to pay such liens, or if the fund is insufficient, then to distribute the same among the lienors pro rata.

    3. In a suit to enforce a lien on an amount due a municipal contractor, given by P. L. 1892 p. 869, the court has no jurisdiction to entertain a cross-bill by the contractor’s representatives for the purpose of an accounting between such representatives and the municipality.
    On motion to strike out cross-bill.

      Mr. Francis Child, Jr., and Mr. Herbert Boggs, for tbe motion.

      Mr. Sherrerd Depue, contra.

   Howell, Y. C.

On August 15th, 1901, the city of Newark entered into a contract with Stewart & Abbott for the construction of a reservoir at Cedar Grove, in the county of Essex. A portion of the work provided for therein was sub-contracted a few days later to James Seme. Seme gave a bond to Stewart & Abbott conditioned for the due performance of his sub-contract, and the complainant, a Maryland corporation which is engaged in the surety business, became surety to Stewart & Abbott thereon.

In June, 1903, Seme discontinued work under his sub-contract, and thereupon, in pursuance of a condition in the bond, the surety company, with the assent of Stewart & Abbott, undertook to finish Seine’s contract, and this they claim they have now fully performed. On December 10th, 1904, Stewart & Abbott, so the bill claims, were indebted to the complainant for labor and materials furnished by it in the performance of the Seme contract in the sum of thirty-five thousand and odd dollars, which they refused to pay, and thereupon on that day it took steps under the Municipalities-Lien law to obtain a lien on the moneys owing by the city of Newark to Stewart & Abbott. The bill alleges that at the time it was filed the city of Newark owed Stewart & Abbott several distinct and separate amounts of money arising out of the contract, which aggregated upwards of $135,000.

Some time in December, 1904, and, as the bill alleges, after the filing of the lien claim, the members of the firm of Stewart & Abbott transferred and assigned to James C. Stewart and Alexander M. Stewart the moneys due and to grow due under their contract. The bill claims that this assignment was subject to the complainant’s lien claim.

In the meantime John L. Stewart, a member of the firm of Stewart & Abbott, died, leaving a will by which he appointed Alexander M. Stewart and James C. Stewart as executors thereof. The defendants are (1) the city of Newark, (2) the board of street and water commissioners of Newark, (3) Frederick W. Abbott, surviving partner of Stewart & Abbott, (4) James C. Stewart and Alexander M. Stewart, assignees of Stewart & Abbott, (5) John C. Stewart and Alexander M. Stewart, as executors of the will of John L. Stewart, deceased, (6) the Empire State Granite Company, another lienor.

The prayer is for a decree adjudging the validity of the complainant’s lien and directing the city to pay over to the complainant the amount claimed therein out of the funds due or to become due from the city to Stewart & Abbott or their assignees, with interest and costs.

The city of Newark and the board of street and water commissioners answered this bill admitting the Stewart & Abbott contract and stating upon information and belief the Seme subcontract and the suretyship of the complainant thereon, but neither admit nor deny the relations between Seme and the surety company or between the surety company and Stewart & Abbott, and claim that they have no knowledge of the amount of money owing to the complainant by Stewart & Abbott. They deny that they have in hand the moneys claimed in that behalf in the bill, but say that there would be considerable money due to Stewart & Abbott under their contract with the city if they had performed all their obligations thereunder; that they had incurred large penalties and deductions from the contract price would have to be made, and that there would then be little, if anything, due to them on account of their contract.

In the twelfth paragraph of the answer the city uses this language :

“It submits to this court the question of how much, if anything, is due by the city of Newark or from the city of Newark to the said Stewart & Abbott, or to their assignee, or to this complainant, or to any person entitled to receive the same.”

An answer was also filed by Frederick W. Abbott, surviving partner, and James C. Stewart and Alexander M. Stewart as executors and assignees. They admit tire Stewart & Abbott contract, the Seme sub-contract, the bond of Seme and the surety company, Seme’s abandonment of the work, its performance by the surety company, the filing of the alleged lien, the indebtedness of the city of Newark in large amounts to Stewart & Abbott, the assignment of the moneys due to James C. Stewart and Alexander M. Stewart, claiming that the assignment was made before the filing of the lien claim by the complainant, but they deny that Stewart & Abbott were indebted to the complainant in the sum of $135,000, or any other sum, or that the surety company acquired any lien upon any moneys due from the city of Newark, and they set out in detail the series of transactions and settlements between Stewart & Abbott and Seme and the surety company, and claim that the surety company is indebted to Stewart & Abbott, or the persons who now represent them, in a large amount of money. They then exhibit their cross-bill against the surety company, setting up the transactions between Stewart & Abbott and their representatives on the one hand and Seme and the surety company on the other hand, and pray for an accounting of these transactions, and that the court may by its decree direct the surety company to pay to the answering defendants whatever may be found'due on such an accounting.

This answer was subsequently amended by adding thereto at the conclusion of the cross-bill embodied therein another cross-bill separate and distinct from the one above mentioned, exhibited against the city of Newark and the board of street and water commissioners and the surety company (the complainant) the object and purpose of which is to charge the city of Newark with a large amount of work as extra work in addition to that provided for in the original contract of 1901, the prayer being that an accounting may be taken of the moneys due from the city of Newark and the board of street and water commissioners to Stewart & Abbott’s present representatives, and that a decree be made directing the city to pay them the amount found due upon such an accounting, including interest.

This cross-bill, however, admits and claims in paragraph 45 thereof that, in addition to this claim for extra work which first appears in this cross-bill, the city of Newark owes to Stewart & Abbott’s representatives large sums of money due under said contract which have not been paid over by it, the exact amount of which is unknown to them, but which they believe to be upwards of the sum of $132,000. There is no prayer in the bill for any discovery or other specific relief.

A motion is now made on behalf of the city of Newark under the two hundred and thirteenth rule to strike this last-mentioned cross-bill from the files, for the following reasons:

First. Because the cross-bill is multifarious in that it seeks different forms of relief against the complainant and the defendant, the city of Newark.

Second. Because the bill is filed under the Municipalities Lien law which creates a purely statutory jurisdiction, and there is no provision for affirmative relief of the nature prayed for.

Third. Because the cross-complainants have a complete and adequate remedy at law.

The only cross-bill that the moving defendant (the city of Newark) is interested in is the one that was brought into the case by the amendment above mentioned, arid the only relief prayed thereby is that the city of Newark and the board of street and water commissioners may account to the Stewart & Abbott representatives for the extra work mentioned therein, and that a decree be made directing the city to pay the amount so found due. There appears to be no particular relief sought against the complainant. This being the situation, I shall discuss the motion without reference to the subdivisions of the reasons stated in the notice.

It will be well to begin by a consideration of the statute which authorizes the suit to be brought; it must be remembered that the proceeding is wholly statutory and can be in touch, with the ordinary systematic methods of the court of chancery only at the point of procedure. Beyond mere procedure the rights, duties and liabilities of the parties are regulated by the statute. This act (P. L. 1892 p. 369) has its object expressed in the title. It is an act to secure to laborers and materialmen payment of moneys due to them for labor or materials furnished by them toward the performance of public works. It does not contemplate an action in this court by an original contractor against the municipality. Its office is merely to create a lien in favor of subcontractors, laborers and materialmen and to provide the means for foreclosing the same. It was largely on this ground that the court of errors and appeals held that the court of chancery alone had jurisdiction to entertain suits under the act. Delafield Construction Co. v. Sayre, 60 N. J. Law (31 Vr.) 449. As-1 read the statute the office of a suit under it is—first, to ascertain whether a lien has been formally perfected by proper filing and service of notices; second, whether sufficient money earned or to be earned under the contract remains on which the lien can fasten; and third, an ascertainment of the amount due on the lien and a decree against the municipality for that amount.

The reason and spirit of the act in my opinion will be satisfied by inquiring in this action, not how much money is actually due from the municipality to the contractor, but whether sufficient money remains to meet the liens which shall be established. There seems to be no reason for pushing the inquiry beyond this point, and no reason for entertaining a litigation between the parties to the original contract excepting for the purpose of providing for the established liens.

-The court of errors and appeals in the ease just cited declares that there is no provision for a personal judgment against the contractor as a debtor, but that the right of the claimants to obtain such judgments against him in other actions is expressly preserved.

In Garrison v. Borio, 61 N. J. Eq. (16 Dick.) 236, Vice-Chancellor Grey declined to enter a personal decree against the lienor on a lien preferred under the act in question.

It is quite clear that the statute did not mean to authorize this court to make a filial and determinative adjudication between the municipality and the contractor, but meant to have the inquiry go so far only as to ascertain whether there remained a sufficient amount of contract-money to pay the liens which are found to be valid liens. When we consider that the action to determine or terminate the lien may be brought by the contractor or by the municipality as well as by the claimant, and that, their separate actions may be consolidated, and that the complainants’ right to bring- personal actions in other courts is preserved, we can readily see that the proceeding was intended to be a proceeding in ram, much like the proceeding for the foreclosure of a pledge or mortgage, and resembling in many of its features the ordinary bill of interpleader.

Again, the nature and extent of the lien created by the statute is another argument in favor of this view. Sections 1 and 5 describe these qualities and give a lien, not on the whole fund necessarily, but “to the full extent of such claim or demand” and “to the extent, of the liability of the contractor for the claim preferred.” These are limitations upon the extent of the lien, and, inasmuch.as this.court can only foreclose to that extent, it would seem as if the jurisdiction of the court must stop at that point.

In Norton v. Sinkhorn, 63 N. J. Eq. (18 Dick.) 313, the court of errors and appeals held that the proceeding was in rem; that it was a controversy over a particular fund involving only the amount due to the contractor from the owner and the amount due to the lien claimants respectively.

Chief-Justice Depue says (at p. 318) :

“Where the amount due to the contractor is undisputed the sole question for adjudication is the amount due to the lien claimants, respectively, from the contractor; when that has been ascertained then the function of the court is to apportion the amount due the contractor among the lien claimants in the proper proportion, provided the fund under the control of the court is sufficient to answer that purpose; if not sufficient, then pro rata until the fund in hand is exhausted. At this stage the jurisdiction of the court under the statute ends. No personal judgment, either for or against a lien claimant, can be given, nor does the statute provide for a judgment against a municipality in case the amount due to the contractor exceeds the sums due to the lien claimants.”

This being the nature of the proceeding, how stands the cross-bill with relation to it ? A cross-bill is a mode of defence to the original suit and in its subject-matter it must be confined to the scope of the original cause of action and to the defence set out in the answer of the cross-complainant. In this case the cross-bill is not intended for any such purpose. To say that the city of Newark owes more than enough money to pay the liens described in the bill is no defence to the original suit. Such an allegation. in a cross-bill does not aid in elucidating the problems raised by the original bill. The admission or claim in the cross-bill that the city owes more than enough to pay the alleged liens shows this in the most conclusive manner. In effect the cross-complainant comes into court saying there is money enough in the city treasury to pay all these so-called liens if they shall be established as such, and, according to our calculation, much more than enough, but we desire that the court shall go beyond the purview of the original suit and ascertain for us the amount of this excess and try out all the difficult questions which are raised by the cross-bill in connection therewith, and ascertain for ns the amount of this excess, and give us a decree and execution therefor. In other words, the cross-complainant comes into court asking for a decree in personam in a statutory suit which provides only for a remedy in rem.

If no money decree in personam can be made in this proceeding against the contractor, nor against the. lienor, on the ground that the proceeding is one in rem, it is difficult to see how the court can make a money decree in favor of the cross-complainant against the municipality. In fact, Chief-Justice Depue,'in the opinion just quoted, declares against the proposition.

In the Norton Case in chancery (61 N. J. Eq. (16 Dick.) 508), also before Vice-Chancellor Grey, Norton, the sub-contractor, who had furnished stone for a road which was being built by Sinkhorn & Walton in Mercer county, filed a bill to enforce a lien under the Municipalities Lien law. Sinkhorn answered that Norton had so delayed his performance of the stone contract that he was subjected to a loss in completing the work. He also filed a cross-bill against Norton claiming that the amount of loss was such that he was obliged to pay a greater sum than was coming to Norton and for the excess he prayed, by way of cross-bill, for a decree in personam against Norton. Norton then moved under rule 213 to strike this defence from the answer, and also to strike out the whole of the cross-bill which sought affirmative relief against him.- The vice-chancellor struck out the cross-bill upon the ground that there was no provision for a personal judgment against the. claimant, citing Delafield v. Sayre, supra, as an interpretation of a doubtful statute. He declared that this case had established a mode of procedure which had been followed, and that inasmuch as the cross-bill was wholly dependent for its support upon an interpretation of the statute that there might be a personal decree against the sub-contractor for the balance due from him, he struck .out the whole cross-bill.

Coming on to the parts of the answer setting up the same defences practical^, he struck out those also; the court of errors and appeals in 18 Dick. 313, modifying the decree below, held that the cross-bill was properly stricken out, but that the answer should have been allowed to stand.

Leaving now out of consideration the question of procuring a personal decree in favor of the Stewart & Abbott representatives against the city of Newark, and omitting that portion of the prayer from the cross-bill, what is left amounts to a prayer for accounting. The cross-bill is not necessary to procure an accounting. All the relief which can be had under any prayer for an accounting can be had on the original bill and answers, so that the cross-bill is not only entirely unnecessary, but is worse than useless, because it adds to the expense and delay of finally adjusting the issues presented. Johnson v. Buttler, 31 N. J. Eq. (4 Stew.) 36; Scott v. Lalor, 18 N. J. Eq. (3 C. E. Gr.) 301.

It was argued against the motion that the submission by the city to this court of the question of the amount due by it on the contract was practically a consent that the court might take jurisdiction of all the matters in difference disclosed by the cross-bill.

I do not think that this statement in the answer should have any such broad construction. Manifestly what the city meant to do was to submit the issues raised by bill and answer, and, indeed, I do not think it could go so far as to admit a jurisdiction under the statute in question to make a decree not contemplated by it.

If my interpretation of the statute is correct this court, notwithstanding the submission, would still be without power to act, because it has no jurisdiction over the subject-matter. The cases cited in the cross-complainant’s brief on this point are all cases in which the court has undoubted jurisdiction over the subject-matter.

My conclusion, therefore, is that the cross-bill must be stricken from the files.


author: Bergen, Vice-Ordinary.

text:
    In the matter of the estate of Isaac R. Vreeland, deceased.
    [Decided February 27th, 1907.]
    A will construed and held not to give to the testator’s son, as life tenant, by implication, the rents of a certain tract of land.
    On appeal from Bergen county orphans court.

      Mr. Raymond P. Wortendylce and Mr. Robert L. Lawrence, for the appellants.

      Mr. Milton Demurest, for the respondents.
   Bergen, Vice-Ordinary.

The seventh paragraph of the last will of Isaac R. Vreeland, deceased, reads in part as follows: “Upon the decease of my son, John Vreeland, I give and devise to my granddaughter, Mary Vreeland, her heirs and assigns forever,” a tract of land particularly described in the paragraph.

Since the probate of the will the executors named therein have collected the rents, issues and profits arising from this land, and in an intermediate account of their dealings with the estate have charged themselves therewith as a part of the general funds in their hands. To this appropriation of such rents testator’s son, John, has filed an exception, claiming that he is entitled to the rents as life tenant, not by express gift, but by implication. The orphans court determined that a life estate could not be implied,, and, from its decree so adjudging, this appeal was taken. The testimony heard by the orphans court has not been brought here as a part of the record, and the case has been submitted upon the will alone. As the estate set up must be implied from the intent, of the testator, to ascertain which the entire will must be considered, a brief analysis of a part of it is required.

The sixth item devises to John Vreeland, a son, a life estate in a part of testator’s lands particularly described, with remainder to Isaac R. Vreeland, Jr., a grandson, and directs that the executors shall, during the life estate, “keep all the buildings on said land in repair, and pay all taxes and assessments thereon out of the income arising from my estate.” Item eight empowers the executors, should John cease to occupy the lands, to take control thereof, and “apply all income arising therefrom in the manner directed by me in the following item of this my will.” By the-ninth item the testator gave and devised “all my other estate,, both real and personal, of which I may die seized or possessed or be entitled to, to my executors” upon certain trusts, viz.: To-manage, control and invest; to receive the rents, issues and profits; to keep the buildings in repair and insured, and from the income to make certain payments to wit: To the grandson,. Isaac, $300 a year; to Mary Vreeland, a granddaughter, $100 a year during the lifetime of his son, John; to Anna A. Dourman $300 a year during her life; to expend for the support of his son,. John, and his family, during John’s life; a sum not exceeding $1,200 a year. By item ten the testator gave at the death of his son, John, all of his “estate then remaining, and all accumulations thereof” to the children of his son, John. Item twelve confers upon the executors a power of sale as to all of testator’s real estate, except the tracts described in items five, six and seven.

Where implications are allowed to raise an estate, they must be necessary to cany out the testator’s intentions; conjectural or possible implications are not sufficient, and a necessary implication should be of such a character as to indicate “so strong a probability of intention, that an intention contrary to it, which is imputed to a testator, cannot be supposed.” Rop. Leg. 81; McCoury’s Executors v. Leek, 14 N. J. Eq. (1 McCart.) 70.

The appellants insist that under paragraph seven the testator intended to give to his son, John, a life estate in the lands described in that paragraph, with remainder to his granddaughter, Mary Yreeland, and that no other intention than that which they impute to the testator can be supposed, otherwise the testator died intestate as to a portion of his estate in the lands mentioned in item seven, he not having, as they argue, made any disposition of the estate remaining therein prior to the gift to Mary Yreeland, which was not to vest until after the death of John.

The difficulty with the argument of the appellant is that it is founded upon a false premise, for by the ninth section of this will the testator devised to his executors in trust all “my other estate, both real and personal, of which I may die seized or possessed, or be entitled to.” This language is sufficiently broad to cover all of testator’s estate, including all interest therein not theretofore disposed of, and would include the lands mentioned in item seven, subject to the gift to Mary Yreeland, to take effect after the death of John, and a clause of this nature will, by disposing of such intermediate estate, and thereby intercepting the descent to the heir, clearly exclude all ground for implication. 2 Jarm. Wills 121. Nor am I able to perceive, after an examination of all of the provisions of this will, any contrary intention indicated by the testator. In the next preceding section of his will he has expressly given to John a life estate in the lands devised by it, and if he intended to confer upon John a life estate in the lands devised by item seven, he would naturally have followed the express language used in item six; on the contrary, he makes no disposition in section seven of any interest in the land devised by it until after the death of John, and with the prior estate remaining, after the gift to Mary, yet undisposed of, he, in item nine, devises the residue of his estate to his executors in trust. The executors were to hold the estate, not otherwise disposed of, and apply a part of the income towards the support of John and his family during his life, and in my opinion it was the plain intention of the testator that his executors and trustees should take the income from the lands given to Mary, which might accrue during the life of John, and'apply it to the carrying out of the trusts established by the ninth paragraph.

My conclusion is that the testator did not leave any estate in the lands in question undisposed of, and that we are not justified in raising, by implication, a life estate in the appellant.

The decree below will be affirmed, with costs.


author: Magie, Ordinary.

text:
    In the matter of the estate of Elizabeth V. Manners.
    [Argued February 6th, 1907.
    Decided May 14th, 1907.]
    1. The prima facie effect of a perfect attestation clause appended to a paper propounded for probate as a will may be overcome by evidence.
    2. By the testimony of the attesting witnesses, it appeared that the paper was not signed by the alleged testatrix in their presence; that when they entered the room where she was, the scrivener who had drawn the paper said in an audible voice that she had made her will and wanted them to witness it, and added “this is her name;” that the alleged testatrix was silent and made no sign of assent to either of the scrivener’s statements.—Held, that there was no sufficient proof of publication of the paper as a will or of an acknowledgment of the making of the signature thereto by the alleged testatrix to satisfy the requirement of the statute.
    On appeal from a decree of the Hunterdon county orphans court.

      Mr. Arthur B. Denman, for the appellant.

      Mr. Paul A. Queen, for the respondent.
   Magie, Ordinary.

The appeal is from a decree refusing probate to a paper-writing offered as the last will and testament of Elizabeth Y. Manners. The paper-writing purported to be signed by the testatrix. There was a perfect attestation clause, to which was appended the signatures of two witnesses, and these witnesses were called and testified on the application for probate.

The perfect attestation clause appended to the will was prima facie evidence of due execution. The prima facie effect of such a clause, however, may be overcome by testimony, and even by the testimony of the subscribing witnesses. Berdan’s Case, 65 N. J. Eq. (20 Dick.) 681.

The questions presented are—first, whether their testimony overcomes the declaration of the attestation clause of the will as to publication by the testatrix; and second, whether their testimony overcomes the attestation clause in respect to the signature of the will.

The evidence renders it clear that the signature was not made in the presence of the subscribing witnesses. When they entered the room in which the testatrix sat they found there the scrivener who had drawn the will and who had requested them to come into the house to witness its execution. Thereupon the scrivener said that the testatrix had made her will and wanted them to witness it. The witnesses expressed the opinion that this was spoken in a voice loud enough to be heard by the testatrix, who sat some eight or ten feet distant in the same room, but they both declare that she made no sign of .assent, and both agree that she did not sign the paper in their presence.

It is settled law that a testatrix may publish a will by assenting to a statement made in her presence. Such an assent may be made by some act or sign. If the scrivener declared, in the hearing of the testatrix, that the paper was her will and she had then signed it, publication might be inferred. But when there was no act or sign by the testatrix, I think that the proof discloses that there was no publication by the testatrix.

As the paper-writing was not signed in the presence of witnesses, it is, by our statute, invalid unless the testatrix acknowledged “the making thereof,” i. e., the making of the signature in their presence. On this subject the evidence shows that the scrivener said, apparently with reference to the paper-writing which was in the room and on the table, “This is her name.” Testatrix remained silent, and no act or sign was made by her to that statement.

But if she had signified her assent to the statement of the scrivener, in my judgment the acknowledgment which the statute requires would not be made out. An acknowledgment that the signature was her name is not an acknowledgment that it was made by her, and I think nothing less than such an acknowledgment will satisfy the statutory requirements.

Tn my judgment, the decree refusing probate must be affirmed.


author: Gummere, Chiee-Justioe.

text:
    Rudolph Herold, appellant, v. Columbia Investment and Real Estate Company et al., respondents.
    [Argued March 26th, 1907.
    Decided July 8th, 1907.]
    1. An owner who divides his lands into lots and streets as shown by a map filed by him with the county clerk, and who sells lots as shown thereon, does not, in the absence of a neighborhood scheme calling for the erection of but one building on a single lot, impliedly covenants not to sell the lands except in the parcels delineated on the map, but he may subdivide the lots into smaller parcels and sell them in such parcels or devote any part of the same to public uses, as streets, parks, &e.
    2. An owner who divides his lands into lots and streets as shown by a map filed by him and who sells lots as shown thereon impliedly covenants with his grantees that they shall have a right of passage over such streets as an appurtenant to the premises granted to them; and such grantees may enjoin a change in the location of or a narrowing of the width of the streets, without first showing that the same will result in depreciation of the value of the lot purchased.
    On appeal from a decree in chancery adtised by Yice-Chancellor Stevenson.

      Messrs. Weller ■& Lichtenstein, for the appellant.

      Messrs. Garrick •& Wortendyke, for the respondents.
   The opinion of the court was delivered by

Gummere, Chiee-Justioe.

The case made by the pleadings and supported by the proofs is as follows:

The defendant, the Ridgefield Land Company, was, in the year 1898, the owner of a tract of land in the county of Bergen, which it had laid out into certain lots and streets delineated upon a map of the property, which was prepared under its direction, and filed by it in the office of the clerk of the county. On the 2d of December of that year it sold to Herold, the complainant, two of the lots shown on its map, namely, lots 10 and 12 in block G. Lot 10 fronts on a street designated upon the map as Summit avenue. Lot 12 adjoins lot 10 and is located upon the corner of Summit avenue and a street designated on the map as Prospect avenue. This latter avenue is laid out on a curve, one portion of it running at right angles to Summit avenue, and another part of it running parallel to that avenue, and forms the boundary for the northerly and the easterly sides of block G.

In the year 1905 the complainant began the erection of a dwelling-house upon his two lots, the contract price for which was about $15,000.

In the meantime the Ridgefield Land Company, after selling a large part of its lots, either singly or in parcels, had disposed of the remainder of its holdings in bulk to one Flood, who in turn conveyed the same, on the 8th of April, 1904, to a corporation known as the Industrial Savings and Loan Company.

On the 26th of September, 1904, this company filed in the office of the clerk of Bergen county another map of the whole tract, upon which many of the lots delineated upon the original map under which the complainant purchased his property, are divided into smaller parcels. In addition an alteration is made in the location and character of certain of the streets shown on the original map, and particularly of Prospect avenue, which is altered by extending the portion which forms the northerly boundary of block G in a straight line to a public highway known as Palisade avenue, and the easterly boundary of the original tract; and, further, by narrowing from fifty to forty feet that portion of the avenue which bounds block G on the east and by renaming it Rothwell avenue.

■ Subsequent to the filing of this second map the legal title wás passed out of the Industrial Savings and Loan Company, but the beneficial interest in the property still remains in it, the legal title being held by a trustee for its benefit. The defendant, the Columbia Invéstment and Real Estate Company, as the agent of the Industrial Savings and Loan Company in charge of the tract, is engaged in selling lots as delineated on the second map, and in altering Prospect avenue so as to conform to the lines and locations shown on that map.

The complainant insists that these changes from the plan exhibited by the original map, if carried into effect, will materially interfere with his enjoyment of his building; the reduction in size of the lots, by causing the erection thereon of buildings of small size and little value, and the alteration of Prospect avenue by changing it into a thoroughfare, the user of which will entirely destroy the quiet of his residence. He further insists that the changes referred to will also largely depreciate the value of his property. For these reasons he seeks, by his bill, to restrain the defendants from altering the location or width of Prospect avenue, or of any of the other streets or avenues delineated on the original map, and from selling any of the land contained in the tract, except by the lots as shown upon that map.

-The complainant also seeks to restrain the defendants from violating a so-called “Neighborhood scheme,” which he alleges was put in force by the Ridgefield Land Company, and became operative throughout the whole tract delineated upon its map, and by the provisions of which but one building was permitted to be erected upon a single lot, and was required to be located a given distance from the front, rear and side lines thereof.

At the hearing of the case in the court of chancery the bill of complaint was dismissed upon the ground that the complainant’s remedy, if he had one, was legal and not equitable. From the decree of dismissal this appeal is taken.

The proofs in the case fail to show the existence of any such neighborhood scheme as is alleged in the bill. It is, therefore, unnecessary for us to consider the question whether the purchaser of a number of lots, all of which have had impressed upon them a general scheme, restricting the number and location of buildings to be erected thereon, has a remedy in equity against the vendor to restrain him from selling other of his lots free from such restrictions. The failure to show the existence of such scheme is also fatal to the claim of the complainant that he is entitled to restrain the Ridgefield Land Company, and its successors in title, from selling its lands except in parcels delineated upon the original map. No such covenant is implied by the making of such a map and the sale of certain lots shown thereon, and the right of the owner to dispose of the unsold portion of his lots, singly or in bulk, or by subdividing them into smaller parcels, and selling them in such parcels, is complete. Not only may he sell the lands in such parcels as he may see fit, but he is under no obligation to his vendees to retain the unsold portion in private ownership. He may, if he sees fit, devote any part of it to public uses, either as streets, parks or in other modes of a general nature calculated to give additional value to the rest of the tract. The refusal of the court of chancery to issue its injunction, either to compel the carrying into effect of the alleged neighborhood scheme or to restrain the sale of the lands embraced in the original map in lots smaller in area than those shown thereon, was, therefore, justified.

But the attempt of the defendants to alter the location and narrow the width of certain of the streets delineated on the original map is clearly an infringement of the rights of the complainant, and for the protection of such rights he is entitled to the aid of a court of equity. In the case of Lennig v. Ocean City Association, 41 N. J. Eq. (14 Stew.) 606, this court held that •whenever the owner of a tract of land lays it out into blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, and then conveys those lots by reference to the map, he becomes bound to the grantees not to use the portion so devoted to the common advantage otherwise than in the manner indicated; that the grantees are regarded as purchasers, by implied covenant, of the right to use the streets as a means of passage to and from their premises, as appurtenant to the premises granted; that this private right is wholly distinct from, and independent of, the right of passage to be acquired by the public, and declared that “the object of the principle is not to create public rights, but to secure to persons purchasing lots under such circumstances those benefits, the promise of which, it is reasonable to infer, has induced them to buy portions of a tract laid out on the plan indicated.” We further held that the threatened violation, by the grantor or his assigns, of this implied covenant in the deed entitled the grantee to relief in equity by way of injunction.

This decision is controlling both upon the question of the property right of the complainant and of his right to equitable relief. It is true that in the cited case it was shown that the threatened invasion of the complainant’s right, if carried out, would greatly depreciate the value of the property purchased by him, and that in the present case the complainant has not made it clear that a like result will follow from the threatened change in the location and width of the streets shown on the original map filed by the Ridgefield Land Company. But this fact does not disentitle him to equitable relief. The threatened injury is, in its nature, a continuing one. If the defendants are permitted to retake into their exclusive possession any part of these streets, and then to sell such portions to purchasers by a reference to the second map, not only will the complainant necessarily become involved in numerous lawsuits with such purchasers, if he attempts to enforce his rights in such land, but the outcome of such litigation it is difficult to foresee. Moreover, the remedy at law is plainly inadequate. If the defendants and their grantees should persist in retaining to their exclusive use the land withdrawn from public streets, notwithstanding the recovery of damages against them in actions at law, the complainant would be finally driven to a court of equity in order to be restored to his legal right. It is not equitable that he should be compelled to embark in a series of expensive litigations before being granted relief by injunction for the protection of his rights.

The decree appealed from should be reversed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenchard, Vredenburgh, Vroom, Green, Gray, Dill—12.