author: Mague, Chancellor.

text:
    John J. Patterson v. Wilbur F. Sadler.
    [Decided June 12th, 1906.]
    A bill for discovery and an accounting between partners, which alleges the existence of the partnership, but makes no statement as to the contributions of the parties to the partnership assets or the proportions in which they were to sustain losses or divide profits, is insufficient.
    On demurrer.

      Mr. Edwin Robert Walker, for the demurrant.

      Mr. Thomas B. Hall, for the complainant.
   Mague, Chancellor.

The demurrer presents many objections to the bill of complaint, of which I deem it sufficient to consider one.

The bill is for discovery and accounting. It is unnecessary to cite authorities to establish the doctrine that such a bill must state sufficient facts to entitle the complainant, if they are proved, to the discovery and accounting that he seeks. Complainant’s right to discovery and accounting is stated in the bill to arise from a partnership agreement between complainant and defendant. The bill states that the agreement was verbal, and that thereby the parties were to secure certain rights of way for a contemplated trolley railway and a charter from the state for such railway.

These statements comprise all that are made in the bill respecting the terms of the contract which complainant asserts was made. It will be observed that there is no statement with respect to the contributions of the parties to the partnership assets, or the proportions in which they were to sustain losses or divide profits. The statements amount simply to an assertion that there was an agreement between the parties, which complainant claims was a partnership agreement, without disclosing what it was, so that the court may determine whether it was an agreement of partnership on which an accounting may be decreed.

In my judgment, this is too vague and indefinite a statement to justify the retention of the bill and the requirement that the defendant should answer. Where the bill discloses a ground for relief, an assertion that the complainant has been kept in ignorance of what defendant has done may justify a prayer for discovery. On a sufficient statement of a partnership agreement, and that one partner has dealt with the partnership property and excluded the other from knowledge of the dealings, undoubtedly tire complainant may claim discovery and accounting.

But if the statement of the partnership agreement is defective, the whole fabric of the bill falls. On this ground the demurrer will be sustained.


source: Caselaw Access Project

author: Magie, Chancellor.

license: Public Domain

text:
    Joseph Goetz and Aaron Meter, executors of Abraham Sickel, deceased, v. Yette Sickel et al.
    [Submitted May 3d, 1906.
    Decided June 12th, 1906.]
    ' A will purported to devise to executors certain lands in trust. Residuary devisees having asserted that the devise in trust was void because violative of the rulo against perpetuities, the executors file this bill to obtain a decree that the trust should be performed and all necessary directions be given for that purpose and for further relief.—-Held, (1) that the right of trustees to require the direction of this court in aid of the performance of their trust duties is not involved, as the bill seeks, rather, a determination whether they are trustees, which involves the question of the title to the land in question; (2) that a decree could not be made in this cause which would establish the title or bar actions at law respecting the same.

      Mr. Thomas Anderson, for the complainants.
   Magie, Chancellor.

The bill in this cause is filed by Joseph Goetz and Aaron Meyer, two of the executors of the last will and testament of Abraham Sickel, deceased. It recites that Yette Sickel, widow and executrix of the deceased, who joined with complainants in proving the will, refused to join with them in filing this bill. It makes her a defendant, both individually and as executrix. The other defendants are children and grandchildren of the deceased.

Complainants’ bill sets out the will of Abraham Sickel in full. It then states that, notwithstanding the complainants and their co-executrix have been collecting the rents of a house in Newark, under a devise thereof to them in trust (which devise is contained in the third clause of the will), which rents they have paid to the widow and to two of testator’s daughters, pursuant to the direction ol the danse, those daughters have lately denied their right to execute said trust, contending that the devise in question is wholly void because in contravention of the rule against perpetuities, which limits the period to which the vesting of an estate may be postponed to'a life or lives in being and twenty-one years after.

The two daughters, who are residuary devisees under the will, have filed no answer. The infant defendants, grandchildren who are interested under the third clause, have filed a formal answer by their guardian ad litem, and the cause has been brought to hearing upon the bill, ■ the formal answer and the proofs. When the cause was first argued there was, in my judgment, such doubt whether, upon the case made, any effective decree could pass that a reargument was directed, which was finally presented by a brief filed May 3d, 1906.

The prayer of the bill is for a decree that the trusts in said will may be performed and carried into execution, and that all necessary directions may be given for that purpose. There is a prayer for further relief, under which any relief germane to the ease made can be decreed.

It is obvious that the case made will not support a decree establishing the title of the house and lot which was the subject of the alleged devise contained in the third clause of the will. A decree that the complainants acquired title thereto by that clause of the will would not bar an ejectment at law. A decree that they acquired no title by that clause would not operate to bar the claim, at least, of children hereafter born, and therefore not parties to this suit.

In Traphagen v. Levy, 45 N. J. Eq. (18 Stew.) 448, Chancellor McGill dealt with a case which he said related entirely to the title to real estate and the nature and extent of the right which executors acquired under a will. It is apparent, however, from the statement of the case, that this expression was too broad, for the will then in question gave some rights to executors, and it was proper and necessary for the chancellor to direct them as to the extent of those rights, and to direct them in their duties thus arising. The case before me more nearly resembles that of Bowers v. Smith, 10 Paige 193, in which one of the questions was whether a certain devise would not suspend the power of alienation to a greater extent than permitted by the law of New York. The bill in that case was dismissed for other reasons, but Chancellor Walworth declared that the decision of legal questions arising on the construction of a will belongs exclusively to courts of law, except where such questions arise incidentally in the court of chancery, and where that court has obtained jurisdiction of the case for some other purpose.

It results, in my judgment, that complainants have presented no ground for relief, unless it may be under the contention strenuously urged by their counsel to the effect that they, as trustees, are entitled to the direction of the court in- the performance of their trust duties.

This claim is so forcible that I hoped I could adopt that view and give some relief. Subsequent reflection has led me to conclude that no decree can be made giving the relief claimed.

The right of trustees to seek the' direction of this court, and the duty of this court to give such directions in certain cases, is undoubted. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407. But it is plain that what complainants seek by this bill is not direction as to the performance of their duty as trustees, but to discover whether they are trustees, and therefore charged with any duty as such. Whether or not complainants are trustees depends upon whether the devise in the third clause of the will is valid or void. If valid, complainants are trustees. If void, they are not. This leads back to the observations heretofore made, that the question is one of title to land, and which a decree here in this cause cannot settle.

Nor can I conceive of any decree made upon this ground which would protect complainants, and this for the reasons before given.

In my judgment, complainants present no greater claim for relief than would be presented if they had brought into court persons having no interest under the will, but who, they charged, claimed title to the house and lot which was devised by the third clause. I deem it beyond question that they could not, under pretence of desire for instruction as to their duties under that devise, draw into this court a question of title to real estate.

It results that the complainants have misconceived their right to resort to this court on the case made, and their bill must be dismissed, with costs to the infant defendants.


text:
    Smith Collins v. The Delaney Company et al.
    [Submitted May 3d, 1906.
    Decided June 18th, 1906.]
    The time of the performance of a contract for the sale of lands may be made of the essence of the contract, by its express terms. A bill which seeks relief upon such a contract, but which discloses that by its terms, time was of the essence of the contract and admits that the contract was not performed according to its express terms, is demurrable.
    On demurrer.

      Mr. John C. Reed and Mr. Clarence L. Cole, for the defendants.

      Messrs. Bourgeois & Sooy, for the complainant.
   Magie, Chancellor.

The bill in this cause is filed in the name of Smith Collins, but for the use and benefit of Max Stoerle, who claims to be the assignee of the rights of Collins which the bill seeks to enforce.

The bill commences with a detailed statement respecting a contract for the sale and purchase of land in Atlantic City made between William Moore, its owner, and Smith Collins and E. Sterling Han, as purchasers. This is followed by statements that Collins acquired Han’s interest, and that Collins and Moore extended the time for the performance of the contract up to a specified date.

The demurrer presents no objection to the inclusion in the bill of the statements of the above-mentioned contract, although no relief is sought upon it. Probably its inclusion may be justified as disclosing the circumstances under which the contract, upon which relief was sought, was made. Those circumstances are the following: After several extensions of the time of performance, Collins was informed by Moore that the contract-must be performed on the specified date. It is admitted in the bill that Collins was unable to perform, except by borrowing $7,500 of the purchase-money (which was $14,000), the remaining $6,500 being, by the terms of the contract, to be secured by mortgage on the land. Collins applied to Delaney, the president of the Delaney Company, for a loan of that amount, and asserts in his bill that he was promised that such a loan would be made on the day fixed for the performance of the contract. When the parties met on that day the proposed loan was not made. On the contrary, Collins acquiesced in the conveyance of the land by Moore to the Delaney Company, and accepted from that company a contract, which is now sought to be enforced.

That contract was dated on September 1st, 1904. The Delaney Company thereby leased the land conveyed to it by Moore to Collins for- the period of four years, at the yearly rent of $1,500, payable at the rate of $125 per month, in advance. It further contained a clause whereby the Delaney Company agreed to sell the land to Collins for $14,000, to be paid as follows: $1,500 on August 31st, 1905 ; $1,500 on August 31st, 1906; $.1,500 on August 31st, 1907; $3,000 on August 31st, 1908, and the balance of the price, $6,500, by a first mortgage on the land, with interest, at the rate of six per cent., payablé semiannually.

The bill states that Collins did not pay the Delaney Company the $1,500 which was to be paid’on August 31st, 1905, according to the terms of the contract. It states, however, that on October 7th, 1905, Collins tendered to the Delaney Company $1,500, with interest thereon from August 31st to October 7th, 1905. This' tender was refused by the Delaney Company.

The prayer of the bill is twofold—first, that the Delaney Company may be decreed to accept the $1,500 tendered, as stated, with interest, in payment of the first installment of the purchase price under the contract, or second, that it may be decreed to accept the whole of the purchase price upon a conveyance of the land to complainants.

The relief claimed in the latter prayer is obviously unenforceable under the statements of the bill. The purchaser has no right to advance the performance of any part of the contract. By it a lease of the land, on terms that are evidently valuable, has come into existence, which the landlord has a right to have continued to the end of the term.

The demurrer not only objects to the relief respecting the whole contract, but insists that, upon the statements and admissions of the bill, the right of complainant to any relief is plainly unenforceable.

The claim of defendant is that complainant has lost any right in respect to a purchase under the contract because he did not perform, or offer to perform, according to its terms. It is conceded that the $1,500 which was required to be paid on August 31st, 1905, was not then paid or tendered. It was afterward tendered, with interest to the date of tender.

It is settled law in this state that the time for the performance of a contract for the sale of lands is, in general, not of the essence of the contract, but that it may' become so in various ways, among others, by the express language of the contract. The doctrine that equity will not permit parties to stipulate respecting the time of performance, so as to fix their respective obligations, has never been adopted in this state. An express contract, making time a particular of it, cannot be ignored by a court of equity. Bullock v. Adams’ Executors, 20 N. J. Eq. (5 C. E. Gr.) 367; King v. Ruckman, 21 N. J. Eq. (6 C. E. Gr.) 599; Griggs v. Landis, 19 N. J. Eq. (4 C. E. Gr.) 350; Dynan v. McCulloch, 46 N. J. Eq. (1 Dick.) 11; S. C., Id. 608; Cranwell v. Clinton Realty Co., 67 N. J. Eq. (1 Rob.) 540.

The contract on which this bill is founded is disclosed therein to have contained the following stipulation:

“It is mutually agreed, as a further condition for granting this lease and option of purchase, by and between the parties hereto that a single failure to pay the rent or'rents stipulated or the amounts due under said option of purchase, upon the day and dates named herein, shall forfeit absolutely for all time the option of purchase and leasehold interest herein contained, and shall make said option of purchase and leasehold interest null and void, and the same as if said option of purchase and leasehold interest had never been written.”

If it be possible for parties to a contract of sale to make time an essential of the contract by their express language, I think these parties have clone so.

Having reached this conclusion, it is unnecessary to consider the other objections made to the bill. Hpon its statements it is apparent that no relief can be granted, and the demurrer must be sustained.


text:
    Charles W. L. Roche et al. v. George Hoyt et al.
    [Argued May 15th, 1906.
    Decided July 9th, 1906.]
    1. A bill, seeking relief which will vary a decree previously made in a cause for specific performance of an agreement for exchange of lands upon allegations of facts subsequently discovered which, if proved, will justify relief, is good upon demurrer.
    2. While parties to a fraudulent transaction are, as respects each other, bound thereby, a court of equity will neither enforce nor avoid the transaction at the demand of either party.
    On demurrer.

      Messrs. E. G. & A. W. Harris, for the complainants.

      Mr, William A. Lord, for the defendant George Hoyt.
   Magie, Chancellor.

The bill in this cause is filed by Charles W. L. Roche and the Security Realty Company against George Hoyt and David L. Osborne, and its purpose is to procure a decree requiring the defendant Hoyt to satisfy, cancel and discharge a mortgage upon certain lands, or for other relief.

The facts stated in the bill as the ground for such relief are briefly as follows: On October 3d, 1905, a decree was made in this court, in a cause in ■ which Roche was complainant and Osborne was defendant, to the effect that certain articles of agreement between Roche and Osborne should be specifically performed by Osborne, and that Osborne, within ten days, should satisfy and discharge a mortgage of $2,000, given by him to the defendant Hoyt, upon certain lands on Oakwood avenue, in the city of Orange, and that Osborne should make, execute, acknowledge and deliver to Roche a warranty deed for those lands upon Roche conveying to Osborne certain lands on Grove street, in Orange, mentioned in said agreement between Roche and Osborne.

By an order in the cause, on November 9th, 1905, upon a report made by a master, it was further ordered and decreed that Roche should deliver to the master a deed of conveyance from the Security Realty Company to Osborne for the lands on Grove street, and that Osborne should make, execute and deliver to Roche a warranty deed for the lands on Oakwood avenue, and that Osborne should pay to. Roche $1,714.93, with interest from November 4th, 1905, with the taxed costs, and that the deed of Roche to Osborne should remain in the hands of the master until that payment should be made. It is then stated that the decree for- the payment of money by Osborne was made because, after the contract between Roche and Osborne for exchange of lands, a mortgage purporting to have been made July 2d, 1904, by him to George Hoyt, upon said land, was recorded on the 10th day of February, 1905, which was the mortgage which the decree directed Osborne to pay and satisfy, and the second order was made because he failed to obey the decree in that respect, and the master’s report fixed and adjusted the amount to be paid by Osborne before receiving the conveyance of the Grove street lands from Roche.

The bill further states that Roche had the final decree recorded in the register’s office of Essex county, and that afterward Roche made and delivered a deed of conveyance of the Oakwood avenue lands to the Security Realty Company.

The bill then proceeds to state that since the making of the final decree and the conveyance to the Security Realty Company the complainants have discovered that tire mortgage given by Osborne to Hoyt was without consideration, and was placed on record the day before the contract of exchange between Roche and Osborne was to be performed, and that the mortgage was not only made without consideration, but by the contrivance of Hoyt and Osborne for the purpose of enabling Osborne to escape the performance of his contract to convey the Oakwood avenue property.

The bill then states that if the mortgage be annulled, Roche will become indebted to Osborne in a small amount, being the difference between the decree and costs in said cause and the amount of said mortgage, and the complainants offer to pay Osborne whatever may be thus found due, and to satisfy and discharge the decree obtained by Roche against Osborne, and to have the deed of conveyance now lodged with the master delivered to Osborne.

To this bill a demurrer is interposed by George Hoyt. The main contention is that there is no equity in the bill justifying the relief sought.

It is first contended that the bill leaves it uncertain whether or not Roche has not enforced his decree against Osborne for the payment of money and received the amount which that decree required Osborne to pay. The bill does fail to expressly state that the decree for the payment of money remains unsatisfied, but the implication and inference from what is stated to that effect is so strong that I think the demurrer cannot prevail upon this ground.

It is next contended that as the bill declares that Roche accepted the decree, recorded it so as under the statute to give him a title to the lands required to be conveyed by Osborne, and obtained a decree for the payment of money upon an accounting into which the mortgage to Hoyt entered, and has conveyed away the property to the Security Realty Company, he may not now, bjr a bill such as this, seek a varied relief.

I am unable to adopt this view. If Roche had known, at the time he filed his bill for specific performance, or at the time he sought for and obtained a decree upon that bill, that the mortgage made by Osborne to' Hoyt was not only without consideration, but was a fraudulent contrivance 'between Osborne and Hoyt to hinder him in the performance of the contract of exchange, obviously he might have had the relief he now seeks in this bill. But he was ignorant of the facts which he now relies on, and took his decree as the matter was then presented to the court and assumed to be true by him. The decree which this bill seeks will no doubt vary the decree previously made, but if he makes proof of the facts stated in his bill, that decree ought to be varied. Whether this bill is a bill for relief, or a bill in the nature of a bill for relief, or an unclassified bill, is, in my judgment, immaterial. What he has now discovered entitles him to seek a varied relief, and if the facts are proved, that relief ought to be granted to him. The bill is not objectionable on this ground.

It is further contended that the bill ought to proffer the payment which will be coming from Roche if the mortgage is set aside, not to Osborne, but to Hoyt. The contention is that, assuming what the bill states and the demurrer admits, the mortgage was without consideration, and contrived in fraud, it yet is a valid instrument as between Osborne and Hoyt, and appeal is made to the well-settled doctrine that such fraudulent transactions are valid and unimpeachable as between the parties thereto. Such is the undoubted rule in respect to all conveyances and transfers of property intended to defraud creditors. In respect to such transactions, neither party is entitled to the aid of a court of equity. Schenck v. Hart, 32 N. J. Eq. (5 Stew.) 774.

The like doctrine is undoubtedly applicable to other transactions conceived and carried out for the purpose of fraudulently diminishing or defeating the right of third parties. Such transaction will neither be enforced nor avoided at the demand of either of the parties thereto. The doctrine is derived from the maxim “In pari delicto, potior est conditio possidenlisB Brown v. Carpenter, 57 N. J. Eq. (12 Dick.) 23. What the court would not do by any direct proceeding it will not permit to be done indirectly.

The complainants are entitled, if they make out a case by sufficient proof, to have the mortgage discharged. Whether Hoyt may have any claim thereafter upon Osborne is a matter to be settled in another proceeding or elsewhere. The demurrer is not successful upon this ground.

Upon the whole case, I think the bill is good, and the demurrer will be overruled.


author: Magje, Chancellor.

text:
    Stephen F. Campbell et ux. v. Hattie De Hart Campbell Cole et al.
    [Decided July 23d, 1906.]
    1. A will gave no express power of sale to the executors, and no power to divide lands or the proceeds of the sale thereof among beneficiaries.—• Held, that no implied power of sale was given.
    2. While the word “bequeathed” is naturally applicable to personal property, yet, when associated in a will with the word “give” it is capable of transmitting real estate if such appears to have been testator’s intention.
    3. Where a will gave testator’s daughter a share of the estate for her own use and benefit, it to go, at her death, to her children, and in case of failure of issue to another or his heirs, the daughter took a more life estate with a limitation over to her children, or, in case no children survived her, to the other or his heirs.
    4. Under the express provisions of P. L. 1898 pp. Blrf, 653, 1660 §§ 26,

      Jf5, J/6, partition sale of lands may be made, notwithstanding that the share held by any tenant in common is for a less estate than a fee, whenever it appears that the land is so situated that partition cannot be made without prejudice to the persons interested.
    On bill to partition lands which were devised by the will of Joseph Campbell by the following language:
    “In the name of God, Amen: I, Joseph Campbell of the Township of Mendham of the County of Morris and state of New Jersey being of sound mind do give and bequeath to my Dear wife Rachel H. Campbell, all my property, personal and real for 7mr own use and benefit during hur life and at hur death to be divided eaquel between my two children Stephen IT. Campbell and Hattie DeH. Campbell Cole, if they are living if not then to there heirs my daughters Hattie share to be for her own use and benefit never to be put in Imr husband hands or Business at her death to go to hur children if any surivie Imr and if none are living then its to go to my son Stephen P. Campbell or his heirs.”
    On motion to confirm master’s report.

      Messrs. Vree'land, King, Wilson •<& Lindabury, for confirmance.

      Mr. John.M. Mills, contra.

   Magje, Chancellor.

On a motion to confirm a master’s report and a supplementary report made by him, the defendant Mrs. Harriet De Hart C. Cole filed objections under rule 166.

The objections contend that the master’s report was erroneous in not finding Mrs. Cole to be the owner in fee-simple of an undivided one-half of the land in question. The interest of Mrs. Cole in the land requires the construction of .the clause of the will of Joseph Campbell set out in the prefatory statement.

It is first contended that the will of Joseph Campbell empowers his executors to make a division of his real and personal property between his two children, Stephen E. Campbell and Mrs. Harriet De Hart C. Cole, and therefore empowers them to make a sale of the real estate involved in this controversy. Heading the whole will, it is obvious that it contains no express power to sell the lands for the purpose of making a division, nor does it contain any direction to the executors named therein to make a division. No duty in that respect having been east upon the executors, there' is no implication that any such power has been conferred upon them. Chandler v. Thompson, 62 N. J. Eq. (17 Dick.) 723. It seems obvious, therefore, that the intent of the testator was to give to the persons named in his will an interest in his estate, real and personal, without any directions for a sale thereof or a division by the executors. It therefore results that his gift to his children was unaffected by any directions for a sale, either express or implied. Each of his children, therefore, was given by this will one-half of his personal estate and an undivided one-half of his real estate, of which the lands in question are a part. His son Stephen thereby became seized, it is conceded by the defendants,'in fee of an undivided one-half of the lands in question, and was therefore entitled to seek a partition thereof "under our statute.

But it is contended that Mrs. Cole became seized of the other undivided one-half of the lands, and this would be evidently correct if the testator had not added to his gift to his daughter the provision that appears in the clause of the will above set forth. After the gift to her of an undivided share in his real estate, he adds the provision that at her death her share shall go to her children, if any survive her, and if none survive her, it shall go to his son Stephen, or his heirs. It is obvious from this provision that Mrs. Cole is given by the testator no interest in his property, real or personal, beyond the period of her life, for at her death it is to be given to her surviving children, if any, and if there are none, then to his son Stephen, or his heirs-at-law. It follows that what estate she acquired thereby was an estate for her life" alone, with a limitation over (1) to her children surviving at her death, or, (2) in case no children survive at her death, to testator’s son Stephen, or his heirs-at-law. The master was therefore correct in holding that Mrs. Cole, by the provisions of the will, had only a life use of the share of the real estate given to her, with a limitation over upon her death.

Tins conclusion is not affected by the fact that the testator, in this unartificial will, declared his intention by the words “give and bequeath.” Bequeath is a word naturally applicable to the transmission by will of personal property, but when it is associated with the word “give,” it may be capable of transmitting not only personal, but real property, as was evidently the testator’s intention.

The master was correct in determining the nature of the estate given to Mrs. Cole, and his report should be confirmed.

With this view of the situation of the estate there is no contention but that, under the provisions of sections 26, 45 and 46 of the act concerning partition, approved June 14th, 1898 (F. L. 1898 p. 61/4), the court has power to make a sale of the lands, the master having reported, upon evidence that is clearly competent and conclusive, that the lands are incapable of being actually partitioned.

The result is that the master’s report must be confirmed, and the order for sale will be made upon his report.


author: Pitney, Y. C.

text:
    Robert H. McCarter, attorney-general, v. The Ludlum Steel and Spring Company.
    [Submitted March 14th, 1906.
    Decided March 29th, 1906.]
    1. The use of a steam traction engine and trailers in the streets of a city is not a public nuisance per se.

    2. On an issue as to whether the use of a traction engine and trailers in the streets of a city constituted a nuisance, owing to danger to the traveling public or injury to the streets, evidence considered, and held, insufficient to show a nuisance.
    3. The court of chancery has power, at the instance of the attorney-general, to inquire and determine whether one using a traction engine and trailers in the streets of a city has so operated the same, or is likely to do so, as to render it unnecessarily injurious either to the highways or to the traveling public, and to restrain its use accordingly.
    4. P. L. 3903 p. 82 requires every person driving a motor vehicle, at request from a person riding or driving a horse, to cause the motor to stop and remain stationary.—Held, that though, on an information by the attorney-general charging defendant with creating a public nuisance consisting of the use of a traction engine and trailers in the streets of a city, there was some evidence tending to show that stopping the engine was injurious to the highway, owing to the slipping of the wheels when the engine started, the defendant would not be restrained from stopping on the proper signal.
    5. On an information by the attorney-general seeking to restrain defendant from operating a traction engine and trailers in the streets of a city, defendant should come under obligations to the municipal authorities to repair and keep in repair any part of the street, where it clearly appeared that actual excavation was due to the revolving of the wheels in turning corners.
    6. On an information by the attorney-general to restrain defendant from operating a traction engine and trailers in the streets of a city, it appearing that one street, occasionally used, had never been so constructed as to render it fit for heavy travel, the defendant will be enjoined from using such street without the consent of the city.
    On final hearing on information and answer and proofs taken in open court.

      Mr. James E. Howell, for the informant.

      Mr. Francis Scoti, for the defendant.
   Pitney, Y. C.

The attorney-general in behalf of the State of New Jersey presents his information against the Ludlum Steel and Spring Company, charging that company with creating a public nuisance in several streets of the borough of Pompton Lakes, in the county of Passaic, and asking that it be enjoined from continuing such nuisance.

The defendant admits doing the acts which it is alleged creates the nuisance, but denies the result, and asserts that no nuisance results from its action.

The nuisance is alleged to consist in the use upon the streets of the borough of a steam locomotive with.cars attached to it, and transporting thereon freight to and from its works (located in the southerly part of the borough) and the station of the Susquehanna railway, a distance of about one mile and a quarter.

The allegation is

“that said locomotive sends out smoke from the smokestack, and the general appearance of the train formed by the locomotive and cars attached thereto is that of an ordinary train of freight cars on a steam railroad track, except that they are smaller in size and are operated directly upon and over said streets and highways. Said locomotive and cars thus operated constitute an unlawful obstruction upon said highways, and are a nuisance and an unwarranted use of the highways. The appearance of said train is such that horses of ordinary gentleness have often been frightened by it, and it is liable to frighten such horses.
“By means of such operation of said train as aforesaid, the rights of the public in said highways to use the same for ordinary travel are greatly infringed upon, and the safety of the public is endangered, and the streets and highways upon which the same is operated are injured by means of the heavy pressure to which they are thus subjected and the unusual method of operation of said train. The surface of the streets is torn up and injured by means of such operation.
“Your informant charges that such use of said highway by the said Ludlum Steel and Spring Company is unlawful and unwarranted, and an infringement of the rights of the public in said highway.”

The facts developed at the hearing are the following: The defendant’s steel works were established over half of a century ago and have been operated more or less steadily during that period. The motive power was, during that time, derived from the fall due to a dam on the Ramapo river, upon which they are situated, and the coal which they used for making heat was delivered to the works by the feeder of the Morris canal.

In 1903 a severe flood washed away the dam, and so far filled up the feeder with solid matter that it became unnavigable, and the defendant was obliged thereafter to obtain its supplies of coal and crude material for the manufacture of steel from one of the railroads which pass about a mile and a quarter away, namely, the New York, Susquehanna and Western railroad, commonly called the Susquehanna, and the New York and Greenwood Lake railroad. The defendant chose the Susquehanna railroad.

The old Paterson and Hamburg turnpike passes near the works, being laid at that point on a course of about northwest and southeast. Somewhere near the centre of the borough and just east of the Wanaque river (the outlet of Greenwood lake) it turns directly west. From that turn the road called Wanaque avenue runs nearly north and east of the Wanaque river to the Susquehanna railroad station, and then turns to the west and crosses the Wanaque river and connects with the main road running north to Boardville, Greenwood and Eidgewood. A newer street has been laid out commencing in the Hamburg turnpike about a quarter or a third of a mile northwest from the steel works and is laid nearly north and south and parallel with Wanaque avenue to a street called Lakeside avenue, which is laid nearly east and west from Wanaque avenue to and along the side of the lake as it originally existed.

There were thus two routes by which the defendant could reach the Susquehanna railroad station, one by the Hamburg turnpike and Wanaque avenue, the other by the Hamburg turnpike until it reached Eamapo avenue, thence along Eamapo avenue to Lakeside avenue, thence for a short distance along that avenue to the railroad station.

The attorney-general claims that it used, first and last, all of these streets with great injury to each of them, more especially to Eamapo avenue.

These highways have all been recently macadamized or stoned. The general width of the traveled part is and was twenty-four feet, beside the sidewalks. The width of the stone work was sixteen feet, except on Lakeside avenue, where it is a little less, and the depth of the stone work was only four inches. The Hamburg turnpike, and, I believe, the Wanaque road, were old and well-hardened roads, especially the Hamburg, which is and for many years has been a much-frequented thoroughfare, and that part of it here in question had been hardened by the application of forge cinders.

These were both macadamized in 1892 and have been repaired once since.

The Eamapo road or avenue was stoned in 1898, and, I infer from the evidence, had been subjected to but little, if any, previous travel. It is for its whole length, which is about three-quarters of a mile, without any drainage fall except towards the centre of its length, hence the surface water after a rain collects at that point,-and there is no sufficient side’drainage, so that it must be disposed of by soakage into the gravel and by evaporation.

Preparatory to the application of stone to Eamapo avenue it was rounded up in the centre and rolled. The bed thus formed consisted wholly of material taken from the sides, which, according to one of the contractors who did the work, had more or less loam in it. It was rolled by a roller weighing only three tons, five feet in width and four feet in diameter, drawn by horses. I conceive this to be entirely insufficient to make a solid road for heavy travel. It was top dressed, after it had been used about two years, with the screenings from broken stone mixed with clay for a binder, that is, to cause the fine screenings to adhere to each other and pack under pressure. It is common knowledge that the result of the free use of clay binder with screenings on a road is to make it muddy after a rain. The pressure of the vehicles causes the clay to rise and separate itself as common mud. In this ease I am satisfied from the evidence that too much clay was used.

I have been thus particular in describing this Ramapo avenue, because the principal damage from the defendant’s engine and trail of cars is located upon Ramapo avenue.

I come now to the engine and trail of cars. These were installed by the defendant in August, 1904, and the information of the attorney-general was filed on October 24th, 1905. The locomotive or road engine is properly described as looking like an ordinary locomotive engine used on ordinary railways, except that it is much smaller. It has two driving wheels attached immovably to an axle without a crank and driven by a cog gearing from another axle or shaft, which is driven by a small engine placed immediately over the driving wheels and supplied with a fly-wheel. The gearing causes the driving wheels to revolve much slower than the crank shaft, and the fly-wheel assists in starting the engine. The engine carries about seven tons on the driving wheels and one or less on the smaller forward wheels, which are used to guide it. The drivers are eighteen inches wide and five feet six inches in diameter. It will be seen at once that they do, to a certain extent, act as rollers and hardeners of the road. This is a claim made by the defendant which, I think, is thoroughly supported by the evidence and common knowledge. They are eighteen inches greater in diameter than the roller used to pack these roads. A moment’s thought leads to the conclusion that the* larger the diameter of the roller the better it will pack, because it tends less to push material under it one way and the other by its weight. In the next place, it has seven or eight tons of pressure as compared with three tons of the roller used in making these roads. On the other hand, each wheel is only eighteen inches wide instead of five feet. The forward and guiding wheels of the engine are three feet in diameter and six inches wide.

The cars drawn by this engine, upon which the freight is carried, are equipped with wheels with tires six inches wide. Here again it is common knowledge that a wagon with a wide tire cuts up or injures a road less, other things being equal, than one with a narrow tire. The tire of an ordinary truck is two or three inches wide. These trailers or cars carry from six to eight tons. And while the proof is that the engine had been, on a few occasions, run with three or four cars attached, yet the clear weight of the evidence is that the regular and ordinary load was and is two cars, and the occasion of adding more cars was exceptional.

The engine and two trailers made a train fifty feet or a little more in length.

Next as to the mode of its use. No complaint was made of the speed—not over four añiles per hour—which it attained, and npne of the conduct of the engine driver. The proof showed that he always stopped his engine when asked by gesture so to do, and that he kept on one side of the traveled way so that other vehicles could pass.

It was objected that the engine was on some occasions operated after dark, but this again was exceptional, the rule and the usual practice being that its operation was confined within the ordinary laborer’s day of ten hours.

The objections to the use of the engine were two—first, that it frightens the horses lawfully on the highway, and second, that it injures the road.

On both of these points the evidence is quite contradictory.

It was admitted that horses were inclined to shy at it precisely as they would at any other strange object and as they do at automobiles. The exhaust froan the engine is muffled so that it makes very little noise. The principal noise is caused by the cog gearing. The weight of the evidence is that, as usual in such cases, the horses in the neighborhood become accustomed to it and many of them never have shied at it.

The charge of injury to the roads has more substance.

In order to prevent slipping and to cause the wheels to adhere to the surface of the road the drivers are furnished with corrugations five-eighths of an -inch high and two inches wide, placed diagonally across the face of the wheel at intervals of seven inches from centre to centre. These corrugations were incorrectly called by the witnesses flanges. They are placed diagonally across the surface of the wheel to prevent thumps as they come to the ground, and the defendant has recently adopted an improvement by changing their form into a letter Y, and my own judgment as a juryman is that the change will result in an improvement.

Now as to the injury done to the streets by this machine. It will undoubtedly wear the face of the street precisely as any other vehicle shod with iron will wear it. But it is said that the corrugations have a peculiar effect in that respect in that they make a mark or indentation on the surface of the street, and in so doing grind up the small stone forming the top dressing, and that in order to propel the machine there is a constant pull upon the top dressing and a tendency to disturb it. This also is proven, but not to the extent claimed by the informant, for the photographs show that the appearance of the surface of the'street after the engine has passed over it leaves a smooth surface crossed by the indentations due to the corrugations, but not disturbed by them. Some evidence was given to the effect that the machine pressed its way down into the body of the street in such a manner as to loosen the stones at the side and to disturb them just at the edge of the drivers. I think this evidence not entirely reliable, and it is fully met by that of the other witnesses, who swear, that the portions of the highway used by this machine present a harder and smoother surface, with less of protruding stones, than the neighboring portions of the same roads.

A careful examination of the evidence leads me to place considerable reliance' upon that of Mr. Whitmore, the county engineer employed by the board of freeholders. He made a careful inspection of the streets in question on January 4th, 1906, at a time when they were in a normal condition, and found no evidence of any injury due to the use of the engine, except at the corner of the streets, where the wheels had ground up the stones in turning.

My conclusion is that when the machine is in actual motion, drawing its load and moving directly along the highway without turning, the result of its operation will not seriously injure the road. It will, on the one hand, tend to pack and solidify it, and, on the other hand, it will not wear it more than an ordinary wagon propelled by horses.

For it must be borne in mind that the iron shoes of a horse, armed as they usually are with corks, do tend very seriously to pick up and loosen the stones of a road. This is common knowledge, and is proven by common observation of the effect on any macadamized or telford road of its use by loaded trucks drawn by horses. It is common knowledge that the portions of such a road used by loaded trucks wear out much more rapidly than portions not so used, and that, other things being equal, the endurance of one of those roads depends upon the extent of its use by horses with metallic shoes armed with corks and- drawing-heavy loads. The horses are enabled to draw their loads in precisely the same way as is the traction engine. The horses pull by their leverage gained by pressing the corks of their shoes into the macadam and pulling against the material thereof. The traction engine pulls in precisely the same manner against the material of which the road is formed.

But there are one or two instances in the use of the traction engine in which it does seriously injure the road.

One is the starting of it. We all know that when a train of cars, hauled by an ordinary locomotive, is started, the tendency is for the wheels to slip on the track, and so with this traction engine. In order to overcome the momentum of its weight and that of its load, a much heavier pull is required than when it has once started, and the same tendency to slip occurs as in the case of an ordinary locomotive engine in starting a train of cars. The evidence in the cause tends to prove and satisfies me that the defendant’s engine here in question has, when it has been stopped on soft ground, had its drivers to slip and revolve precisely as though it were a locomotive on a slippery track. In fact, there is direct proof that on one occasion it did become stalled at night, perhaps laboring under an unusually heavy load, and did tear up the road under.the driver, and in order to enable it to start it was necessary to throw a quantity of small stones in front of the drivers to enable them to lift the engine out of the hole which it had worn in the street.

The evidence tends to show that it is probable that these instances of stalling occurred in the first months of the use of the engine and were the result of incautious overloading. I say this because the party who drove the engine since June, 1905, was sworn and seemed truthful and testified that no such stalling or slipping had occurred since he operated the engine.

Now, the engine driver of this engine, in order to comply with section 6 of the “Act defining motor vehicles” of March 23d, 1903 (P. L. 1903 p. 88), was in the habit of stopping his engine when anybody approached it on the street and signaled him to do so, as provided by the act, and I have no doubt that on those occasions the starting of the engine tended to injure the road and probably in some cases did injure it more than it would have done if it had not been stopped. I say this notwithstanding the evidence, as far as it goes, is that ordinarily the machine started immediately without any slip. The same result obtains in the case of the starting of a heavy load drawn by horses. It is common knowledge that horses are liable to paw up the road in starting a heavy load.

The other occasion when the engine is liable to injure the road is when it is turning a corner, and in fact Mr. Whitmore, one of the witnesses of the defendant, gave- evidence, as previously stated, that at the point of turning the corner from one of the avenues near the railway station there was evidence that the engine had injured the road. Now this tendency to injure the road when turning the corner is easily understood when we consider that both the driving wheels are firmly fixed to the axle and each one must make precisely the same number of revolutions. At the same time, in going around a circle, the one on the outside of the circle must travel farther than the one on the inside of the circle, hence the latter of necessity must slip backward while it continues its revolution. The effect of this backward slip is precisely the same as if the engine wheels were revolving without any corresponding forward motion of the vehicle, and inevitably they must tear up and grind the surface of the road. In this respect this engine in question is at a disadvantage in comparison with an ordinary truck whose wheels aie loose on the axles.

In the next place, in order to determine whether the engine as used by the defendant is or not a.public nuisance in respect of its wear of the road, we must ascertain what the rights of the defendant are in the matter of transporting its material to and from its works and the railway station.

It undoubtedly has a right to use the public highway for that purpose without payment of tolls or tax other than that included in its general tax, which is fifteen per cent-, of all the taxes of the borough. But its rights would be precisely the same in that respect if its works 'were just outside the borough line. In this state we have' never adopted the policy of attempting to equalize taxes on vehicles in accordance with the amount of their several users of the highway.'

, Now, this train of cars will carry about fifteen tons of material at one load of two cars. That, according to common knowledge, would make about eight ordinary two-horse truck loads, so that for eveiy trip made by this engine defendant would be obliged, if deprived of its use, to make eight trips with a two-horse truck, and my judgment as a juryman on the evidence is that the corks of the horses’ feet and the wear and tear of the narrow tire of the ordinary trucks in use would do more damage to the roads than the engine in question with its two trailers does with their six-inch tire wheels.

The evidence shows that in twelve months this engine worked on one hundred and thirty-two days out of the three hundred and sixty-five, and that it made four hundred and five trips on those days, being an average of a trifle over three trips a day when it actually ran. If horses and trucks had been used there would have been three thousand or more trips made, or an average of ten trips' every day for the three hundred working days in the year; or if the carting had been confined to the one hundred and thirty-two days there would have been about twenty-three trips each day.

In making this comparison between the two modes of transportation one other matter requires and has not escaped my attention. Taking two tons for an ordinary truck load and the weight of the truck at one ton or less we have less than three tons weight on the four wheels, with, say, two and one-half to three inches for tire width, or ten to twelve inches altogether. Now, the trailers used by the defendant probably weigh three tons (I do not find that their weight is given) and carry seven or eight tons, making ten or eleven tons on four wheels each six inches wide, or twenty-four inches altogether. The result is that by adding together the width of the wheels and comparing them with the weights, the load of the trailers to the square inch is greater than that of the ordinary truck, giving an apparent advantage to the truck. But against this we have, what I conceive to be common knowledge, that the wear of the road is less, from the same weight, to the square inch from a broad wheel than from a narrow wheel; in other words, a tire six inches wide with three tons weight on it will wear the road less than a tire two inches wide with one ton on it. This result is due to the fact that it is the edge of the tire that cuts and wears and not the central part, while the wide tire tends to pack and the narrow tire to separate rather than pack the pieces of stone and to make a rut. In this discussion I have perhaps relied on matters as. common knowledge which are not properly so classified, and may have fallen into error, and in order to avoid error will give the parties an opportunity for a rehearing on this part of the case if they desire it.

I come now to the law applicable to this case.

Contrary to my first impressions I find that it has never, so far as the researches of counsel and my own have reached, been held that the use of a steam-engine for purposes of traction on an ordinary roadway was, at common law, per se a nuisance.

It clearly appears that the statutory regulations to which-such use is subject in England recognizes the previous use of the highways for the purpose. The first general act is that of August 1st, 1861 (21). and 25 Viet. Law J. Stat. p. 106). That act recites that the use of locomotives is likely to become common on turnpikes and other roads, and that under certain local turnpike acts tolls may be levied upon locomotives and other engines drawing or propelling wagons or carriages which are or may be prohibitory of thp use of locomotives on the roads, and then proceeds, after further recitals, to regulate the use in various ways and fk the tolls to be charged.

But the thirteenth section provides as follows:

“Nothing in this act contained shall authorize any person to use upon a highway a locomotive engine which shall be so constructed or used as to cause a public or private nuisance, and every such person so using such engine shall, notwithstanding this act, be liable for an indictment or action, as the case may be, for such use where, but for the passing of this act, such indictment or action could be maintained.”

This act was followed by other amendatory acts not necessary to be cited, and has been before the courts several times.

The latest case is Attorney-General v. Scott, L. R. 1 K. B. Div. 404 (1904). It came before Justice Fillimore on a motion for an injunction. The case was much like this, and on the ex parte affidavits the judge granted the injunction. On appeal his action was affirmed, the court contenting itself with simply construing the act. This report is cited by the complainant.

But the case was set down afterwards for hearing and came on with witnesses in open court before Justice Jelf, and was heard July 2d, 1904, as reported in L. B. 2 K. B. Div. 160 (1905). The learned judge, after reciting the evidence, came to the conclusion that the use which the defendant was making of the road in that case did not amount to a nuisance, and his result was affirmed by the court of appeals on the 23 d of January, 1905.

The same subject was under consideration by a divisional court composed of three' judges of the king’s bench, on the 1st of November, 1905, as reported in L. B. 1 K. B. Div. 167 (1966). There the corporation of Chichester recovered damages against the owner of a traction engine for the breaking by it of a water main owned by the corporation, on the ground that the engine was unusually and unnecessarily heavy.

It appears that the question in England in all these cases is whether the use made of the road by the owner of the vehicle is reasonable or not. Thus in Fgerly’s Case, in 17th Gar., reported in S Salle. IBS, an information in the king’s bench .against a common carrier alleged that no wagon ought to carry more than one ton weight and that the defendant used a wagon with four wheels which carried two tons'at one time and spoiled the highway leading from Oxford to London, and this information was adjudged good, and though it is said that he went with an unusual number of horses, without setting forth what number, yet the information is good because it was the excessive weight which he carried which made the nuisance.

The American authorities are to the same effect.

In Moses v. P., F. W. and C. Railroad Co., 21 Ill. 516, the court says: “A street is made for the passage of persons and property and the law cannot define what exclusive means of transportation and passage shall be used. * * * To say that a new mode of passage. shall be banished from the streets, no matter how much the general good may require it, simply because the street was not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age.” This language was quoted with approval by Chief-Justice Cooley in Macomber v. Nichols, 34 Mich. 212; 22 Am. Rep. 522. The action was brought to recover damages to the plaintiff suffered through the alleged wrongful act of the defendant, namely, fright of his horse at a steam traction engine. The court said: "A highway is a public way for the use of the public in general, for passage and traffic, without distinction. The restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjojunent of the easement, and the inconveniences must be submitted to when they are only such as are incident to a reasonable use under impartial regulations. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience or even to the injury of those who continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purposes for which highways are established.

“In some of the large cities of the country sufficient means of transit by the old methods have become practically out of the question and steam power is permitted as a matter of necessity, not only as a means of moving vehicles by the side of teams in the street, but also over their heads, where the liability to cause fright would perhaps be still greater. Horses of ordinary gentleness would at first be liable to take fright, but after a time they become accustomed to the objects that at first are so fearful to them, just as in the country they become accustomed to see trains of cars passing near them along the ordinary railways, which sometimes for a considerable distance run in immediate proximity to the common roads. Horses may be, and often are, frightened by locomotives in both town and country, but it would be as reasonable to treat the horse as a public nuisance from his tendency .to shy and be frightened by unaccustomed objects as to regard the locomotive as a public nuisance from its tendency to frighten the horse. The use of the one may impose upon the manager of the other the obligation of additional care and vigilance beyond what would otherwise be essential, but only the paramount authority of the legislature can give to either the owner of the horse or the owner of the locomotive exclusive privileges. If one, in making use of his own means of locomotion, is injured by the act or omission of the other, the question is not one of superior privilege, but it is a question whether, under all the circumstances, there is negligence imputable to someone, and if so, who should be accountable for it.”

In Commonwealth v. Allen, 23 Atl. Rep. 1115; 148 Pa. St. 358 (Supreme Court of Pennsylvania), the defendants were indicted and convicted for maintaining a nuisance in a certain road by the use of a road engine with two trailers (mucli like those here) in hauling stone from a stone quarry over a narrow piece of road, which, in its use for that purpose substantially monopolized the road and endangered the bridges thereon. The court held that the evidence was sufficient to warrant the verdict and affirmed the conviction. There had been an act of the legislature in Pennsylvania regulating the use of traction engines, and the court says: “While a man may have a right under this act of assembly to run a traction engine over a public road for a necessary purpose by complying with the terms of the act, yet if he uses that privilege in an unreasonable and in an unusual way it may constitute a public nuisance. A man may lawfully use a public highway in the transaction of his legitimate business, either for travel or for transportation, but it is common law and common sense that he must use it in a reasonable manner and not interfere with its reasonable use by other citizens. And whether a particular use is an unreasonable use and a nuisance is a question of fact to be submitted to a jury.”

Again in the same court, in Coulter v. Township, &c., 30 Atl. Rep. 490 (November Bth, 1891), which was an action by an individual against the township for injury due to a broken bridge, in his opinion Judge Mitchell says: “It is an error to suppose that Commonwealth v. Allen (just cited) decided as a matter of law that the moving of traction engines for steam threshing and other purposes over roads or bridges was at that time an extraordinary or unlawful use of the public highways.”

The latest judicial expression to which my attention has been called is found in the case of Indiana Springs Co. v. Brown, 74 N. E. Rep. 615, in the supreme court of Indiana, June 1st, 1905. That was an action to recover damages against the defendant, plaintiff in error, for driving an automobile in such a manner as to frighten the plaintiff’s horse and throw him out to his injury. The court says: “'It cannot be said aS a matter of law that appellant was guilty of negligence for using 'an automobile as a means of conveyance on the public highway. * * * In all human activities the law keeps up with improvement and progress brought about by discovery and invention, and, in respect to highways, if the introduction of a new contrivance for transportation purposes, conducted with due care, is met with inconvenience and even incidental injury to those using ordinary modes, there can be no recovery, provided the contrivance is compatible with the general use and safety of the road. It is, therefore, the adaptation and use, rather than the form or kind of conveyance, that concerns the courts.

“The restrictions which the law imposes upon all modes of travel and traffic on the highways are such as tend to secure to the general public the largest enjoyment of the easement, and must be observed and borne by all alike on the broad ground that all have an equal right to travel in safety; and, when accidents happen as incidents to reasonable use and reasonable care, the law awards no redress.” The opinion then quotes the citation from Chief-Justice Cooley, above quoted.

The result of my examination of the subject is that there is no warrant for holding that the use by the defendant of its traction engine and trailers in this case necessarily creates a common-law nuisance such as to warrant the interposition of this court to abate it. Hence it is not necessary to consider the question raised by the defendant that the attorney-general cannot be heard in this court in the present action until the right of the state has been established by conviction or other judgment at law.

That rule applies to the existence of some permanent structure the right to maintain which may be in doubt. I do not think it applies to those cases of nuisance which arise out of the excessive or improper use of a lawful instrument of commerce. I think it would be quite absurd to apply it in this case where the nuisance arises, if at all, from the mode in which the defendant uses its engine.

I am of the opinion that this court has the power, at the instance of the attorney-general, to inquire and determine whether the defendant has in any instance so operated its engine or is likely so to do in the future as to render it unnecessarily injurious, either to the highways or to the traveling public, and to restrain its use accordingly.

I have already indicated wherein and under what circumstances defendant’s engine is liable to injure the street, namely, when starting and turning corners. In the matter of stopping and starting 'in the street it has, as already stated, been governed by the sixth section of the Automobile act. The defendant conceives it is within the definition of the words “motor vehicle,” found in the first section of that act, and has taken out a certificate called an automobile license from the secretary of state. But for that section of the act I should say it was quite unnecessary for the defendant to stop its engine, since its Speed never exceeds four miles per hour.

For these reasons I am of the opinion that this court ought not to restrain defendant from stopping its engine on the proper signal.

With regard to the injury to the street and the turning of corners the evidence shows, as I believe, that this only occurs at .one point. But wherever it occurs I think the defendant should come under obligations to the proper municipality to repair and keep in repair that part of the street or any other place or part where it shall clearly appear that any actual excavation in the street is due to the revolving of its wheels.

In the next place, I think the defendant should be enjoined from attaching more than two trailers to its engine.

The principal difficulty I have had in this case is as to whether the defendant ought to be enjoined from using Ramapo avenue. Fox reasons already stated I conclude that this avenue never was so constructed as to render it fit for heavy travel, either by ordinary loaded trucks or by defendant’s traction engine, and I think it would have been as much worn by the use of trucks as by defendant’s engine. I infer from the'evidence and the statements of counsel that the defendant has of late refrained from using it, and I feel disposed to enjoin it from using it'unless the municipality shall consent thereto.

With regard to the danger to the traveling public arising from the liability of horses to be frightened by the engine, I think that this court ought not to interfere. No restrictions which it may place upon the use of the engine can materially reduce its liability to frighten horses. The engine differs from the ordinary automobile in the respect that it is substantially stationary and its owner and driver are always to be found and are liable at law to respond in damages for any injury which may result in that connection. On this subject the authorities leave no room to doubt. The very question is dealt with in some of those which I have cited.

I will advise a decree in accordance with this opinion after hearing counsel.


text:
    Robert W. Patrick v. Catharine Patrick et al.
    [Decided May 15th, 1906.]
    1. A partnership, engaged in the business of contracting builders, purchased with firm funds vacant property, and erected thereon buildings for the purpose of sale. At the time of the death of one of the partners the partners held such real estate.—Held, that in the distribution of the assets of the firm the real estate should be treated as personalty, and the widow and heirs of the deceased partner were entitled to receive the same as personalty.
    2. A surviving partner filed a bill against the widow and heirs of a deceased partner to settle the partnership affairs. The suit was conducted in a friendly manner, and the counsel for defendants took a personal interest in all the sales of the real estate belonging to the partners and assisted the court in each case in which it was called on to approve the sales.—Held, that defendants were entitled to their costs out of the estate.
    3. Each party to the suit was entitled to a counsel fee, to be paid out of the partnership assets, in addition to the taxable costs.
    On final hearing.

      Mr. Egbert J. Tamblyn, for the complainant.

      Mr. Ghmncey G. Parker and Mr. Alfred N. Dalrymple, for the widow.

      Mr. Herbert L. Thowless, for the infant children.
   Pitney, Y. C.

This is an administration suit to wind up a partnership and pay the debts and distribute the net assets.

Eor present purposes it is sufficiently accurate to say that the net partnership estate now in hand for distribution is the result of the sale of real estate, and that the proceedings have been conducted throughout in an entirely friendly spirit and manner. There has been no contest whatever up to, this time.

The sole question remaining is whether that part of the proceeds which now is to be allotted as the share of the deceased partner shall be treated in such allotment and distributed between the widow and her children as personalty or as realty.

The facts are these: Two brothers, Robert W. Patrick and John L. Patrick, were, during their joint lives, partners as contracting builders, and during the last years of their joint lives were engaged as partners in the business of buying, with partnership funds and credits, vacant lots and erecting thereon buildings, erected in like manner from partnership funds, to the construction of which they gave their personal attention, and then selling them in the market at a profit if possible.

John L. Patrick died in 1904 intestate, leaving his widow and three infant children him surviving.

At the time of his death the brothers were the owners by conveyance to them as tenants in common of several valuable pieces of real estate in Newark, nearly all of which were somewhat encumbered by mortgages given by the two brothers to secure their joint partnership indebtedness.

Shortly after the death of his brother, Robert W. Patrick, the survivor, filed the bill herein against his brother’s widow and children and against her as administratrix of her husband’s estate, to settle the partnership affairs. The widow and children appeared, the latter by guardian, and the cause was brought to a preliminary hearing, at which the existence of the partnership and its nature and objects, as above set forth, were proven wholly by parol.

A decree establishing the partnership and for the sale of the land was made on the 11th day of April, 1905.

The various pieces of real estate were brought into the market and sold free and clear of tbe rights of all the defendants and all at a good price.

The debts were paid and the net sum of about $14,000 remains. The partnership accounts were settled by a master.

The question, as above stated, is as to the disposition of the share of the deceased brother in this sum. How shall it be distributed between his widow and her infant children?

In considering that question I shall not treat the children’s interests as at all prejudiced by the interlocutory decree before mentioned.

First, what is the effect of the scope of the partnership having been wholly by parol'?

The question as presented by this case differs, perhaps, from what it would be if this were an attempt by a party to establish a partnership in a going business which consisted entirely in dealing in real estate by a contract resting wholly in parol.

That question was dealt with in an elaborate opinion by Sir James Wigram in Dale v. Hamilton, 5 Hare 369 (1851), and he came to the conclusion, after a thorough examination of the authorities, that a partnership in real estate transactions could be established inter partes by parol. But that decision has been questioned and not followed by later decisions, as appears by an examination of the text and notes of Lind. Pari. 81 Book 1 ch. 4

However, Lord Lindley lays down the law to be that if a partnership entered into by parol to deal in real estate be actually entered upon and the business conducted in accordance with such parol contract, the effect upon the land in the way of conversion from realty into personalty is precisely the same as if the Contract be in writing. And this was held in Essex v. Essex, 20 Bear. 449 and land which had been used by partners for partnership purposes under a parol contract was held to be personalty.

However, the very question here involved was considered with great care by "Vice-Chancellor Kindersley in Darby v. Darby, 3 Drewry 495; 2 Jur. (N. S.) 271; 25 L. J. Ch. 271 (1856). I have used the latter report. After going through all the previous authorities with great care he proceeds (at p. 878), as follows:

“Now the present case is not'precisely that. It is not the case in which two persons agreeing to carry on ordinary commercial or manufacturing trade find it desirable or necessary, for the purpose of carrying that trade on, simply to purchase a site for that trade. This is not that case exactly. In this case they bought the land as stock in trade, by the sale of which, in retail I may call it, they were to make the profit of their partnership. There the land was not the plant, if I may use the expression, on which the trade was to be carried on, but was the only commodity that was the subject of their trade. Does that make any difference? If it makes any difference, it appears to me the difference is all in favor of its being personal property, because, beyond all doubt, this real estate is put into the same position as cotton would be that was purchased by persons in the cotton trade, or. as sugar would be when purchased by persons carrying on the sugar business in partnership together, or as any other trading commodity would be when purchased by persons carrying on a particular trade. It appears to me that, even if I entertained a greater doubt on the cases that have already been considered, of partners purchasing merely a site for their trade, if I entertained a greater doubt on those cases, that doubt would hardly exist to the same extent when I come to consider that here the real estate was bought merely for the purpose of selling it again. The very contract of partnership, the very nature of the partnership which these two gentlemen, Abraham and Alfred Darby, entered into was, £We will buy this land in order to sell it again/ There is, although not in writing, because it was a verbal contract, an express contract that they shall sell this real estate again, and without selling this real estate again they would have had no profit, nor any business to carry on at all. Therefore, I confess it appears to me in this case there cannot be the slightest doubt that Abraham and Alfred Darby, having purchased this real estate for the purpose of parceling it out into small lots convenient for building purposes, and other purposes which purchasers might require property for, and having, in effect, actually contracted that they will sell it again, each partner has a right at the dissolution of the partnership, or at any time during the partnership, to say, I will have the contract carried out; the property shall be sold as we contracted it should be sold. So that here we have what Lord Thurlow wanted in Thornton v. Dixon, namely, an actual contract that the property should be sold.”

And see in this connection Myers v. Perigal, 11 C. B. 90 (1851); 2 DeG. M. & G. 599, 619, and Forbes v. Steven, L. R. 10 Eq. Cas. 178 (at p. 188 et seq.) (1870).

As Darby v. Darby, like this, was a pa.rol contract between the parties, it is precisely in point.

Further, Darby v. Darby makes the distinction between the purchase of real estate for .the uses merely of a partnership engaged in manufacture or trade other than dealing in real estate, and the present ease where the real estate is itself the stock in trade.

. There are authorities in this country, and probably the great majority hold that in the former case, as pointed out in Craighead v. Pike, 58 N. J. Eq. (13 Dick.) 15 (at p. 22), the real estate, not being, strictly speaking, partnership stock in trade, will be treated as personalty only so far as is necessary to pay the partnership debts. See in this connection the language of Chancellor Vroom, in Smith v. Wood, 1 N. J. Eq. (Sax.) 74 (at p. 82). And see Campbell v. Campbell, 30 N. J. Eq. (3 Stew.) 415, per Chancellor Bunyon, and see all the cases collected up to that date in Buchan v. Sumner, 2 Barb. Ch. Rep. 165 (at p. 199 et seq.).

But this rule does not apply where the only business of the partnership is the dealing in real estate, and the original contract contemplated and required its sale during and at the end of the partnership business.

This last was distinctly decided in Maddock v. Astbury, 32 N. J. Eq. (5 Stew.) 181, where there was a contract in writing that the surviving partner, in case of death, should be entitled to take the partnership property at a valuation.

That suit was, as here, an action by the surviving partner to enforce the contract as against the heirs-at-law and personal representatives, and Chancellor Runyon held that the contract should be enforced and the amount coming to the personal representatives should be treated as personalty and go to the next of kin and not the heirs-at-law.

I shall therefore advise a decree that the widow is entitled absolutely to one-third of the net sum remaining as the share of her husband, instead of the usual one-third for her life, and the balance to be paid to the guardian of the infants.

With regard to the costs—the suit has been conducted in a friendly manner, and the counsel for the defendants have taken a personal interest in all of the sales of the real estate, and have attended and assisted the court in each case that it has been called upon to approve the several sales which have been submitted to it. Therefore, in justice to the defendants, they should have their costs out of the estate. And this seems to be the settled practice in eases of this nature in the English courts. The reason of the rule is that the suit is beneficial to both parties. See Hamer v. Giles, 11 Ch. Div. 942 (1879); Potter v. Jackson, 13 Ch. Div. 845 (1880), and Butcher v. Pooler, 24 Ch. Div. 273 (1884), per Vice-Chancellor Bacon (at p. 274). There the plaintiff, though she failed in her main contention, was allowed her costs out of the estate.

In Ross v. White, 3 L. R. Ch. 326 (1894), it was admitted that each party were entitled to have his costs out of the fund, but one party had drawn out more than his share of the partnership assets and the balance was such that if he took out his costs the other side would not get his proper share of the proceeds, and the court held that before the party who had overdrawn his account could have his costs he must replace the amount of his overdraft.

In the English courts the costs include counsel fees.

This brings us to the question of counsel fees in this case.

I think that each side is entitled to a counsel fee, to be paid out of the fund in addition to the taxable costs. These latter, of course, are not sufficient compensation, especially in the case of the defendants. Their counsel have rendered equal service with the complainant in bringing this partnership to so fortunate a conclusion.

The counsel for the widow, as such and as administratrix of her husband’s estate, in rendering these services, could not, and in fact did not, distinguish at all between her and the infant children. And on the final question as to the conversion of the real estate into personalty they submitted the authorities on both sides of the question to the court, with eminent fairness to the infant defendants, and did nothing to mislead the court.