author: Garrison, J. Swayze, J.

text:
    Edmund Wilson, attorney-general, appellant, v. State Water Supply Commission et al., respondents.
    [Submitted December 8th, 1913.
    Re-submitted December 7th, 1914.
    Decided March 1st, 1915.]
    1. A “civil information” is a legal proceeding in chancery, older than the court of equity, whose equitable powers, when acquired, were termed “extraordinary” to distinguish them from its ordinary or legal jurisdiction.
    2. An information by the attorney-general on behalf of the state to enjoin a state commission from carrying out an unauthorized contract to purchase land, being an action affecting all the people of the state, presented a strictly legal remedy and was addressed to that legal jurisdiction of the chancellor which originated in the doctrine of the impeccability of the sovereign and the righteousness 'of his purposes towards his subjects.
    3. P. L. 1912 p. 556, authorizing the state water supply commission to acquire property, does not authorize the commission to exercise judicial or qatm-judieial powers, but merely to exercise the administrative functions of a purchasing agent, and therefore the common-law writ of certiorari will not lie to review its action in entering into an invalid contract to buy land.
    4. Whenever jurisdiction was originally acquired, and the scope of the common law has since become enlarged so as to furnish an adequate legal remedy, the earlier jurisdiction, even as to a court of equity, is not thereby destroyed or lessened, though it is made concurrent.
    5. That P. L. 1912 p. 556, which authorizes the state water supply commission to acquire property, provides that contracts under it shall be reviewable by the supreme court as to reasonableness and fairness, does not preclude remedy through an information filed by the attorney-general to enjoin the carrying out of contracts under such statute, on the ground that they are illegal because entered into in excess of the power conferred on the commission.
    6. P. L. 1912 p. 556, which authorized the state water supply commission to acquire property, but is silent as to the amount of the indebtedness that may be created thereby, will not be construed to authorize a contract in violation of constitution, article 4, section 6, paragraph 4, forbidding the legislature to create any debt of the state which with previous debts shall exceed $100,000, unless authorized for some single object or work to be distinctly specified by law submitted to the people and providing for payment of same within thirty-five years.

      7. A contract by tbe state water supply commission to purchase lands and deliver bonds therefor of a par value of $1,000,000, secured by a mortgage on the property, which contract purported to be executed under authority of P. L. 1912 p. 556, authorizing the commission to acquire property, was violative of constitution, article 4, section 6, paragraph 4, forbidding the legislature to create any debt of the state which with previous debts shall exceed $100,000, unless authorized for some single object specified by a law submitted to the people and providing ways of paying same within thirty-five years.
    8. Where a contract which is made by the state water supply commission, *an agency of the state, and incurs an obligation in violation of constitution, article 4, section 6, paragraph 4, limiting the right to create state indebtedness, is challenged by the state on information of the attorney-general, the court should prevent it from going into effect.
    On appeal from a decree of the chancellor, whose opinion is reported in 82 N. J. Eq. 32.

    This appeal brings rip a decree of the chancellor sustaining a demurrer to an information filed by the attorney-general to enjoin the carrying out of a contract between the state water supply commission and the executors of the Joseph Wharton estate for the acquisition for state purposes of a tract of land at a purchase price of $1,000,000, to be secured by a mortgage on the land so purchased. The information avers that the state water supply commission in making this contract was the agent of the State of New Jersey by virtue of a statute of this state (P. L. 1912 p. 818), and that the lands so purchased will be acquired by tbe State of New Jersey for the purposes set forth in such statute, and that the debt incurred in the acquisition of such lands for such purposes is a debt of the state within the meaning of article 4, section 6, paragraph 4 of the constitution, and that the creation of such debt (which is in excess of $100,000 and not of the sort excepted by the constitution) was not within the authority conferred upon said commission by the statute in question.
    The constitutional provision is as follows:
    “The legislature shall not, in any manner create any debt or debts, liability or liabilities, of the state, which shall singly or in the aggregate with any previous debts or liabilities at any time exceed one hundred thousand dollars, except for purposes of war, or to repel invasion, or to suppress insurrection, unless the same shall be authorized by a law for some single object or work, to be distinctly specified therein; which law shall provide the ways and means, exclusive of loans, to pay the interest of such debt or liability as it falls due, and also to pay and discharge the principal' of such debt or liability within thirty-five years from the time of the contracting thereof, and shall be irrepealable until such debt or liability, and the interest thereon, are fully paid and discharged; and no such law shall take effect until it shall, at a general election have been submitted to the people, and have received the sanction of a majority of all the votes cast for and against it at such election; and all money to be raised by the authority of such law shall be applied only to the specific object stated therein, and to the payment of the debt thereby created. This section shall not be construed to refer to any money that has been, or may be, deposited with this state by the government of the United States.”
    To this information the executors of the Wharton estate filed a general demurrer specifying as the grounds thereof that the contract set forth in the information was made by the state water supply commission under statutory authority constitutionally conferred upon it, and that the attorney-general was not entitled to relief in a court of equity.
    This demurrer was sustained by the chancellor in an opinion in which the salient features of the contract in question are set forth with sufficient particularity, the general result reached by the opinion being that the debt created by such contract was that of the state water supply commission and not that of the State of New Jersey.
    The appeal taken by the attorney-general has been reargued at the suggestion of the court with especial reference to the question whether information or certiorari was the proper remedy.

      Mr. Theodore Backes, assistant attorney-general, Mr. John W. Wescott, attorney-general, and Mr. Edmund Wilson, former attorney-general, for the appellant.

      Mr. J. Edward Ashmead and Mr. Frederick J. Faulks, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

A civil information is a legal proceeding in chancery older than the court of equity, whose equitable powers, when acquired, were termed “extraordinary” to distinguish them from its ordinary or legal jurisdiction.

Thus Blackstone says that in the court of chancery

“there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity. The ordinary legal court is much more ancient than the court of equity.” 3 Bl. Com. 47.

A generation earlier it was said:

“In the chancery are two courts or rather two manners of powers, the one ordinary, wherein the proceedings are according to the laws and statutes of the realm; the other extraordinary, according to the rules of equity. This court, as a court of law, had heretofore great extent of jurisdiction and multiplicity of business. By this short view it appears that the matters determined in the chancery according to the rules and methods of the law must in times past have created much business in the court and that at this day there must be sometimes proceedings in this court according to law.”

The quotation is from a controversial pamphlet published anonymously in 1727 and referred to by Judge Story as “by Lord King (or whoever else was the author of the treatise entitled The Legal Judicature of Chancery stated).” 1. Eq. Jur. 44.

It is now known that it was written by Samuel Burroughs, with the assistance of William Warburton, the famous religious controversialist. Life of Lord Hardwicke (1913) 94, 95.

Judge Story is also authority for the statement that among the earliest writers of the common law, such as Bracton, Glanville, Britton and Fleta (and he might have added The Mirror), there is not a syllable to be found relating to the equitable jurisdiction of the court of chancery. 1 Eq. Jur. 39.

It is to this period when the chancery was a court of law, and the chancellor a common law judge, that we must refer those legal procedures in chancery, of which information by the attorney-general was the most important, as it has proved to be the most enduring. Indeed, it is more than probable that these legal procedures arose in the aula regis itself, and upon its dissolution were parceled out to the chancellor because of his more intimate relations to the crown. Certain it is that upon the breaking up of that royal council the chancellor emerged as a distinct court having a legal jurisdiction closely connected with the royal prerogatives and duties.

This was in the time of Edward I. and the equitable jurisdiction of the court did not arise until the reign of Edward III.

Short of compiling a treatise from sources equally available to all, it must suffice to say that the legal jurisdiction of the chancellor centered around two fundamental conceptions — the impeccability of the sovereign and the righteousness of his purposes toward Ms subjects. The king could do no wrong and the chancellor was the beeper of his conscience. From those conceptions it followed that if a subject was wronged by the king the chancellor would redress it, and that if all of the king’s subjects suffered from an act unlawfully done in his name, the chancellor, upon being so informed, would see that right was done.

Of this latter class was the cancellation of letters patent when made against law or upon untrue suggestion, whereby the regalia or common domain was diminished, which was done in chancery, not, however, upon information, but by scire facias, for the reason that the patent was a record in that court. 8 Bac. Abr. 609; 3 Bl. Com. 45, 48; Attorney-General v. Sooy Oyster Co., 78 N. J. Law 394 (at p. 407).

With few exceptions, however, the redress of public injuries in the name of the king was instituted by the attorney-general by an information which, as the name imports, merely informed the chancellor of the existence and nature of the public wrong; it being considered beneath the dignity of the king to pray for relief in his own courts and also that the keeper of Ms conscience had but to be informed of a public wrong in order to right it.

Confining our attention to cases resembling in principle the one now before us, the essentials of this jurisdiction were that the information should be exhibited by the attorney-general as the representative of the sovereign and that it should refer to matters by which the public or public rights were affected by unlawful acts done in the name of the king or by some agency or instrumentality of his government.

These essentials of jurisdiction, being fundamental principles of the common law, survived the changes wrought by the Revolution, and exist in this country as a part of the common law excepting where altered by constitutions or legislative enactments of which in this state there is no trace. It would be quite profitless to rehearse the changes in practice and forms of procedure that have been adopted in those jurisdictions in which this common law proceeding still obtains, or to enumerate those in which, owing to the abolition of chancery or the merger of the courts, it has been measurably lost sight of. In the federal courts such actions are brought directly in the name of the United States by a bill in equity, and even in this state the information, both as to its prayer and the relief sought, no longer conforms strictly to the old landmarks. The removal of a landmark, however, does not destroy a title, and in all of its essentials this legal jurisdiction of chancery is maintained in this state, as evidenced by a large number of eases, a few of which may be cited at random: In Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 401, the ratio decidendi was that “the conservation of public interests is with the state and its attorney-general.” Of an early case, decided in 1834, it is said: “The doubts expressed by the chancellor in Attorney-General v. New Jersey Railway and Transportation Co., 3 N. J. Eq. 140, have been dissipated and contradicted by the later course of adjudication.” 1 Eng. Rul. Cas. 573.

In MacKenzie v. The Trustees, 67 N. J. Eq. 652, 683, and in The Trustees v. Attorney-General, 78 N. J. Eq. 1, the proper office of the attorney-general is recognized and stated. In Stevens v. Stevens, 24 N. J. Eq. 77, 82, an equity suit that concerned the famous Stevens floating battery, the attorney-general interposed an information in order to assert a public legal right in the State of New Jersey. And the list might be indefinitely extended. The cases affecting gmsi-public bodies are collected in Attorney-General v. Firemen’s Insurance Co., 74 N. J. Eq. 372.

That none of these eases is on its facts just like the one before us is aside from the point, which is that the present case presents every essential of the common law jurisdiction by information, viz., action by the attorney-general on behalf of the state to redress an injury arising from an unlawful act of a state agency affecting all the people of the state. This brings such action clearly within the principle of the common law, and it is by such principles that we must be guided rather than by precise precedents or by the presence or absence of modem instances. Enough has been said to point out that we are dealing with a strictly legal remedy and not with the court of equity or with any encroachment of equitable jurisdiction ujoon the writ of certiorari. Indeed, the present case is not within the province of the common law writ of certiorari, for the reason that the act of 1912, which is the one under review, does not call for the exercise of judicial or gwasi-judicial powers, but solely for the administrative functions of a purchasing agent.

Hence, the review of the action taken under such statute is solely by force of that extension of the writ of certiorari that obtains in this state to a greater degree than elsewhere. To this situation the pertinent rule, even as to a court of equity, is that whenever jurisdiction was originally acquired, and the scope of the common law has since become enlarged so as to furnish an adequate legal remedy, the earlier jurisdiction is not thereby destroyed or lessened, although it is made to be concurrent. 1 Pom. Eq. 182.

It has not escaped our attention that the statute of April 1st, 1912, provides that contracts and obligations under it shall be subject to review by the supreme court as to the reasonableness and fairness of the terms'and conditions thereof. These, however, are not the matters at which the present information is aimed, which are the illegality of the contract and the absence of power on the part of the water commission to enter into it.

Upon this branch of the case, therefore, we conclude that the attorney-general in exhibiting his information in the court of chancery was within his legal rights and that the question presented by this appeal must be considered upon its merits.

The chancellor sustained the demurrer to the information upon the ground that the water supply commission was “a corporate entity apart from, the state,” that its contract was not the contract of the state, and that the mortgage debt for the purchase price of $1,000,000 was the debt of such corporate entity and not that of the state. This result was reached by the chancellor, contrary to his own views, because of what he conceived to be the controlling effect of the decision of the supreme court in Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. Law 183, 514. In this he was in error. What was there held was that the constitutional provision now under consideration “has no application to local or municipal indebtedness.” Such decision has no bearing upon the indebtedness with which we have to deal, which is created by a state agency that is in no sense local, since its authority is to acquire lands and water rights for the general and common use of the inhabitants of the state, and which is in no sense a municipal agency, since it possesses not a shred of governmental power.

That the authority thus exercised in behalf of the inhabitants of the state is that of a purchasing agent appears in every provision of the statute. The lands so acquired are state property, which would conclusively appear if this commission were to be abolished, in which event the lands that had been so purchased would belong either to the state or to the individuals who had composed the commission, an alternative that admits of but one conclusion. The authority of the commission to act as such purchasing agent is contained in the statute of April 1st, 1912, and the sole question to be decided is whether or not such statute conferred upon the commission the power to make the contract in question by which the entire purchase price, amounting to $1,-000,000, is left unpaid as a mortgage debt upon the lands purchased. If by this statute the legislature has authorized the making of this contract the debt thereby created is one that is created by the legislature within the meaning of the constitutional provision, since by the fundamental maxim of agency the legislature creates whatever it authorizes its agent to create. But, by an established canon of construction, the statute will not be construed to authorize the contract if the effect be the creation of a debt that the legislature is by the constitution prohibited from creating. A statute, by force of this familiar canon, will, if possible, be so construed as to render it constitutional. In the present case, there is no difficulty in so construing the statute, which is absolutely silent as to the amount of indebtedness that may be created in the purchase of lands; and which must therefore be construed as not authorizing tire present contract, if the debt thereby created is in excess of the constitutional power of the legislature. This brings us to the crux of the case, which is whether this statute would be constitutional if it in terms authorized the creation of a mortgage debt of $1,000,000. A mortgage debt is clearly within the language of the constitution, for the simple reason that the language there used is broad enough to cover every manner of debt; a debt created “in any manner” is the unqualified constitutional description. The only question is whether we shall pare this language down and say that it means only this sort of debt or only that sort. The principal attempt in this direction is to limit the word “debt” to actionable debts, i. e., to those the payment of which is enforceable. For such a limitation there is not the slightest justification either in common usage or in the context. Common usage reflects common experience, which teaches us that the vast majority of debts are paid without any reference to their enforceable character. Why, therefore, should the exceptional case be singled out as illustrative of •common usage in order to give to a word the sense in which it is most infrequently used? A debt against the enforcement of which the statute of limitations has run is in common usage “an •outlawed debt,” and gambling debts are even spoken of as “debts of honor.”

Another attempt to pare down the constitutional language is based upon the argument that a debt that is to be collected from a particular fund, or that is to be made out of a particular piece of land, is for that reason not a debt, an illogical argument that carries with it its own refutation. As a matter of common usage, no term is more familiar than “mortgage debt.”

If the context be regarded, we find that it not only gives no support to these limitations, but, on the contrary, distinctly refutes them, for in the context “debt” is connected with “state” and “legislature,” neither of which is amenable to that enforcement of debt to which it is sought to limit the meaning of that word. But the context goes further than this, in a most significant direction, when we consider that the only manner in which the legislature pays a debt is by the making of an, appropriation. Regard for the context, therefore, must at least constrain us not to deny to the word “debt” its'ordinary meaning merely because it is payable by a legislative appropriation. It is at least a reasonable construction that what the framers were guarding against were not suits and actions against the legislature, which they knew could not be brought, but debts incurred by the legislature which they knew might be paid by appropriations if they were permitted to be contracted. That this was no fanciful anticipation is shown by the contract now before us which provides for a sinking fund for the payment of the mortgage debt, the first source of which is: “(1) Any and all moneys which shall from time to time be appropriated by any legislature of the State of New Jersey towards the principal of said bonds or any part thereof.”

An additional sinking fund is provided after five years, “this sinking fund shall be provided (1) from any appropriations made by the legislature of the State of New Jersey.” Finally, it is provided that the mortgage debt shall be made out of the property “unless a special appropriation be made by the legislature of the State of New Jersey.”

Obviously, there are very practical reasons why the word “debt” in the constitution should be construed to include those payable by legislative appropriation; it is against the construction of such debts that the constitutional provision is aimed and not against voluntary appropriations for any lawful object.

It is in this connection of significance to inquire what was the object of these appropriations that were to be made “from time to time,” first to the original sinking fund, then five years later to the additional sinking fund, and finally to the satisfaction of the mortgage debt. Were they gifts — or were they payments made in the reduction or discharge of a debt ? If, after the land had been improved in the manner contemplated by the contract, and after a part of the purchase price had been paid the mortgage was foreclosed and the legislature appropriated the money necessary to redeem its property, would it not be the payment of a debt? The very decree on which such payment would be made would so dominate it.

In dealing with all of these attempts to pare down this provision of the constitution, it must be constantly borne in mind that it is the only one in that entire instrument in which the right to pass upon a law after it has been enacted by the legislature is expressly reserved to the people. Such a provision should be construed so as to effectuate, not to frustrate, its object, which latter result is surely accomplished if the propriety of a purchase of- this magnitude can, by a general law, be turned over bodily to four or five citizens, however estimable, instead of being, as the constitution requires, passed upon by the legislature itself, i. <?., by the senate, the house of assembly and the governor. For, it is only when this has been done, and the specific object sought, together with the ways and means, have been enacted into a law that the referendum provided by the constitution can be had. It cannot be that the legislature by a wholesale abdication of its constitutional functions can defeat this unique provision of the organic law. The only way to avoid such a criticism is by holding, as we do, that the statute that was enacted applied only to purchases that did not create an indebtedness that would violate this constitutional provision, and, as has been pointed out, the statute thus construed affords no authority for the contract that was entered into on behalf of the state.

A contract thus entered into by a state agency without authority when challenged by the state itself should not be permitted to go into effect. This, in substance, is what was set forth and charged by the attornejr-general in his information; it was error, therefore, to sustain the demurrer thereto.

It is perhaps unnecessary to add that the decision of this legal question in no way involves the propriety of the purchase in question. Our sole concern is that a right reserved to the people by their constitution shall be secured to them by their courts.

The decree of the court of chancery is reversed, and the cause remitted to be proceeded with therein according to law and the practice of that court.

Swayze, J.

(dissenting).

Since I have the misfortune to differ from a majority of the court, and the question is one of great importance and involves substantially the power of the legislature to create a subordinate agency for a public purpose endowed with powers adequate to its work, I think I ought to express the reasons for my dissent. In dealing with any constitutional question, it has been the rule of the courts from the very beginning of our constitutional law, laid down by Chief-Justice Marshall himself, not to declare an act unconstitutional unless it was clearly so. Nowhere has this restraint imposed by the courts upon their own action been asserted more strongly than in our own courts in recent years. The careful observance of this restraint, I think, 'is of the utmost importance. Otherwise the courts run the risk of usurping the function of the governor to veto legislation, and of eventually losing the power to act effectively when the constitutional limitations are transgressed. It is in this spirit that I approach the present ease. The question is: Is it clearly beyond the power of the legislature to create a subordinate public agency empowered to acquire property to be paid for out of the property itself and upon the express condition that the mortgage and bonds given for the purchase-money shall in no manner create or constitute any present or future indebtedness or liability of the state ?

I think the present proceeding is not beyond the power of the legislature, first, because the debt, if there be a debt, is that of a subordinate public agency only, and second, because in this case there is no such debt as was meant by the constitutional, provision.

In Van Cleve v. Passaic Valley Sewerage Commission, 71 N. J. Law 183 (at p. 228), Mr. Justice Pitney said that the constitutional provision against a state debt had no applicancy to local or municipal indebtedness, and that a contrary view would overthrow practically all our municipal bond issues. The judgment was reversed (71 N. J. Law 574), but solely upon the ground that the commission in that case was clothed with the power of taxation, and this court was careful to say that its conclusions resulted in sustaining the power of the legislature to engage directly in the undertaking of the purification of the Passaic valley sewerage district, including its right to put forth directly for this purpose its police powers, and to exercise such powers through a board of commissioners selected and appointed in the manner provided in the act. As is well known, that enterprise is now proceeding.

The present case is free from the difficulty that arose in the Passaic Valley Sewerage Case. No power of taxation is given to the commission. No property can be held for the payment of the purchase price except the very property itself. It is expressly provided that the claims of bondholders shall not be enforced against other holdings, property or rights of the commission. The authority to use assets of the commission unappropriated is no more than an authority to use funds actually in hand for a legitimate public purpose, very much as the proceeds of sale of riparian lands are used for the school fund. The provision for the payment into a sinking fund of any moneys which shall be appropriated by any legislature toward the principal, leaves it entirety optional with each successive legislature whether to appropriate or not, and in no way contravenes or modifies the express provision that the mortgage and bonds shall not create or constitute any indebtedness or liability of the state. Whatever a legislature may thus appropriate hereafter is a voluntary appropriation for a legitimate public purpose. If the legislature cannot constitutionally make such appropriation for the benefit of this subordinate public agency, we must assume that it will not do so; this provision then becomes nugatory, or may be excised. If the legislature can constitutionally make such an appropriation, I see no objection to the money when appropriated being used for the purpose which the legislature designates. I do not overlook the fact that the powers of the Passaic valley sewerage commission were not co-extensive with the state. There are, however, other subordinate public agencies, incorporated and unincorporated, which incur obligations property called debts for which the state has to answer.

I doubt if there is a day when unpaid obligations of this kind incurred in behalf of hospitals, prisons, reformatories and other charitable institutions do not exceed one hundred thousand dollars. A glance at the report of the state treasurer for 1914 shows more than one day when payments made at the end of a calendar month, for obligations incurred during the preceding month, exceeded one hundred thousand dollars. Whether there was a credit extended in these cases which would prevent the obligations from being past due at the time they were paid, 1 do not know, but the present discussion as to the possibility of a deficit in the state’s revenues admonishes us to be careful how we hold that the indebtedness of subordinate agencies in excess of one hundred thousand dollars is forbidden by the constitution. No one has ever suggested, or is likely to suggest, that these debts of the state are within the constitutional prohibition. Some, no doubt, are for current expenses, others for extraordinary expenses, such as buildings. The reason why these debts are not regarded as transgressing the constitution may be in part because revenues to meet them are already in sight, in part because they are obligations of subordinate state agencies. But the revenues are not always in sight and the obligations are not always the obligations of subordinate state agencies. The real reason why such debts have never been supposed to transgress the constitutional provision, is that they are not the kind of debts and liabilities which the constitution meant to prohibit. Some qualification must undoubtedly be placed upon the words “debts and liabilities.” I think that qualification is to be found in the circumstances that existed at the time the constitution of 1844 was adopted, and that the object of the framers was to prohibit the issue of state bonds, or similar obligations, failure to pay which might expose tire state to the reproach of repudiation under which some of our sister states then suffered. That reproach can never be brought in a case like the present, where the whole scheme is carefully drawn to enable the public to secure what the legislature thought was for the public benefit without the state itself incurring any legal or moral obligation whatever. The plan avoids the evils which the constitutional provision was designed to meet, since the specific property acquired must be worth what is paid for it, or the owners would not sell on such favorable terms to the purchaser, and the public can at most lose no more than the specific property. The burden of taxation is not increased. There is no danger of the state repudiating its obligations, since, by the express terms of the contract, it incurs none.

If we look to other states where similar plans have been adopted, under similar statutory or constitutional provisions, the great weight of authority is in favor of their constitutionality. It is enough to cite some of the cases collected in the very satisfactory brief of counsel for the respondents: Perrigo v. City of Milwaukee, 65 N. W. Rep. 1025; City of Milwaukee v. Milwaukee Company, 69 N. W. Rep. 819; Burnham v. City of Milwaukee, 75 N. W. Rep. 1018; Winston v. City of Spokane, 41 Pac. Rep. 888; Faulkner v. City of Seattle, 53 Pac. Rep. 365; Dean v. City of Walla Walla, 92 Pac. Rep. 895; Griffin v. City of Tacoma, 95 Pac. Rep. 1107; Brockenborough v. Board of Water Commissioners, 46 S. E. Rep. 28; Kelly v. City of Minneapolis, 65 N. W. Rep. 115.

It is far from clear to me that the present scheme is forbidden by the constitution, and I think the decree should be affirmed. Mr. Justices Trenchard, Minturn and Black and Judges White and Terhune concur in these views.

For affirmance — Swayze, Trenchard, Black, White, Terhune — 5.

For reversal — The Chief-Justice, Garrison, Parker, Bergen, Kalisch, Bogert, Vredenburgh, Heppenheimer, Williams — 9.


source: Caselaw Access Project

author: Swayze, J.

license: Public Domain

text:
    The Germania Building and Loan Association, respondent, v. B. Frankel Realty Company et al., appellants.
    [Submitted July 6th, 1914.
    Decided March 1st, 1915.]
    A mortgage was given to a building and loan association for money to be advanced as the building progressed; there was no agreement as to the time when advances should be made; after certain amounts had been advanced, the mortgagor gave an assignment of a portion of the remaining sum secured by the mortgage; the mortgagor failed to complete the building, and after the assignment conveyed the property to creditors in trust; they completed the building, and, upon a bill to foreclose, filed a cross-bill seeking to have a decree that money which had been paid by the association to the assignee, be paid to them to reimburse them for the cost of completing the building. — Held, that the equity of the assignee, which was prior in time could not be superseded by the equity asserted by the grantees to have the money applied to the completion of the building.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 82 N. J. Eq. 49.

      Mr. Charles B. Gurney and Mr. Frank E. Bradner, for the respondent.

      Mr. Hugo Woerner, for the appellants.
   The opinion-of the court was delivered by

Swayze, J.

The facts of the case are fully stated in the vice-chancellor’s opinion. 82 N. J. Eq. 49. It would be unnecessary to add anything but for a possible misunderstanding of some language in the opinion.

We do not think it necessary to consider whether the building and loan association was under an obligation to advance any money in addition to the $5,000 actually advanced prior to the pajment of the order held by Schneider, until the building was fully completed. In the absence of an agreement as to the time when the advancement should be made, it might be necessary for the building and loan association to withhold further advances until it was assured that its mortgage would cover a completed structure. The case does not require the determination of these questions, since the building was in fact completed, and both parties, by their pleadings, conceded that the building and loan association was under an obligation to advance the full amount called for. The appellants abandoned any right they might have to terminate the contract and to insist that the mortgage is good only for the $5,000 that had been advanced before this controversy arose.

The question in the case, therefore, is not the equity of the purchaser of the land to redeem by paying off the amount actually advanced, but is the question dealt with by the vice-chancellor, namely, whether the equity of Schneider, which was prior in point of time, could be superseded by the equity asserted by the appellants to have the money applied to the completion of the building. As the vice-chancellor pointed out, the ordinary rule would give Schneider the priority. It could only be supplanted upon proof of a special equity-on the part of the purchaser of the land which would make it necessary for the building and loan association, in every ease, to see to the application of its advancements. There is nothing in the ease to indicate that there is such an equity. There is no contract to that effect and both parties had treated the case as one where the money advanced by the building and loan association might be applied, not merely to the expenses incurred in constructing the building, but to any other debts to which the mortgagor might see fit to apply it.

The decree must be affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Heppenheimer, Williams —14.

For reversal — None.


author: Bergen, J.

text:
    First National Bank of the Town of Union, New Jersey, respondent, v. William Fessler et al., appellants.
    [Argued June 16th, 1914.
    Decided January 27th, 1915.]
    1. If an instrument is to be reformed in equity, all persons to be affected by the reformation must be in court.

      2. Before equity will reform an instrument upon the ground that through a mutual mistake, it does not express the intention of the parties, the mistake must be shown to have been mutual by dear and convincing evidence, for this remedy will not be granted upon a probability, nor upon a mere preponderance of evidence, but only upon clear proof, amounting to a reasonable certainty, that the mistake was mutual, and that both parties intended to express what does not appear in the writing, or that they intended something different from what is to be implied from the words used.
    On appeal from a decree of the court of chancery advised by Advisory Master Maximilian T. Rosenberg.

      Mr. J. Emil Walscheid, for the appellants.

      Mr. John J. Fallon, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The complainant holds in due course a negotiable promissory note drawn by Thomas F. Purcell to his own order, endorsed by him and by M. William Hilbert, John H. Eastwood and William Fessler, in the order stated. The note was written, and, as endorsed, was for $33, with a blank space between the words “thirty-three,” and dollars; it also contained, on the upper left-hand corner, the figures $3,300.00, and in this form was discounted by the complainant, for the account of Hilbert, as a note drawn for $3,300, the proceeds of which Hilbert drew. After non-payment and protest, the complainant filed its bill of complaint against the maker and endorsers, praying that the note be reformed to read $3,300, instead of $33, as written, upon the ground that through a mutual mistake of all the parties to the transaction, the note did not express their true intention. The only defendants served with process were Hilbert and Fessler, the others being non-residents and not brought within the jurisdiction of the court, Hilbert made no defence, but Fessler filed an answer denying the alleged mistake and averring that he had no intention to endorse for any sum other than $33, as written in the note. The master who heard the case for the chancellor advised that the note be reformed as prayed in the bill, and a decree was thereupon made adjudging that the note be reformed as prayed by the complainant, although it cannot be binding against some of the endorsers prior to Fessler, they not being in court. The effect of this 'decree is to make Fessler an endorser on a note for $3,300, while it still remains a note for $33, so far as the maker and the prior endorser, Eastwood, are concerned, and who are primarily liable to protect Fessler. There is no evidence in the case that there were any dealings or negotiations between the complainant and Fessler, or that his endorsement was the result of any mutual mistake between the complainant and Fessler, but the complainant bases'its right to relief upon the ground that, as between Hilbert and Fessler, there was a mutual mistake, and that when it acquired the note from Hilbert, it was entitled to the benefit of such mutual mistake. This note is negotiable in form, and whether the purchaser of negotiable paper is entitled to have such paper reformed because of an alleged mutual mistake between one endorser and another, as to the amount the note was intended to be drawn for, is a question not necessary to be determined in this case. Hilbert manifestly could not require reformation, because the note was endorsed by Fessler for his accommodation, and we are not to be understood as conceding, that under the facts in this case he could, bjr his subsequent dealings with the note, confer upon the party to whom he transferred it a greater right than he himself would have, because this case can be disposed of on other grounds, but in dealing with this case, we have assumed that a holder in due course may have the advantage of a mutual mistake between the original parties where the note is executed and delivered with all the indicia of an ordinary negotiable promissory note.

There are two reasons why this decree cannot be sustained. The first is, that the court did not have before it all the parties which the decree undertakes to bind, for, by its terms, it makes the note read, as one given for $3,300 against the maker and all the endorsers, and as expressing, “the true intention and meaning of the parties to said note.” There is no evidential proof in the case that either the maker or Eastwood, who endorsed the note prior to Fessler, intended to make a note different from the contract as it now appears. There was testimony by Hilbert that he asked Purcell and Eastwood to make and endorse a note for him for $3,300, but the trial court limited the effect of the evidence to the defendant Hilbert, and expressly said, that it had no force whatever against the defendant Fessler, and no cross-examination was had on that subject, and manifestly it could not bind Purcell or Eastwood, as neither had been brought into court, therefore the adjudication that the note should be reformed as to them is without foundation in this record. The injury which the defendant Fessler suffers is, that he is made liable as surety on a contract which, so far as this adjudication goes, his principal never made, for as to all who are primarily bound, and to whom he could have recourse, except Hilbert, the contract could not be reformed.

That the court did not have jurisdiction over the maker" and prior endorser is no excuse for reformation as to Fessler, for, if the instrument is to be reformed, it must be reformed as to all parties to it, and bind each alike, and that manifestly cannot be done in the present state of this record.

The second reason is, that there is no sufficient proof of the mutual mistake between Hilbert and Fessler set up in the bill of complaint. There is some proof to which reference will be made, but it is not of that character which the law requires to support the reformation adjudged, for before equity will reform an instrument upon the ground that through a mutual mistake it does not express the intention of the parties, the mistake must be shown to have been mutual by clear and convincing evidence, for this remedy will not be granted upon a probability, nor upon a mere preponderance of evidence, but only upon clear proof, amounting to a reasonable certainty, that the mistake was mutual, and that both parties intended to express what does not appear in the writing, or that they intended something different from what is to be implied from the words used.

The complainants’ case rests almost entirely upon the testimony of Hilbert, for whose accommodation the note was endorsed. What he says is, that he told Fessler that he needed about $3,300, and wanted to know whether he would endorse a note for him for that sum; that Fessler agreed to do this, and on the day following he went to a hospital where Fessler was engaged as a physician; that they went into the visiting-room, and he handed the note to Fessler who looked at the face of it and said, “This is for Thomas F. Purcell,” to which the witness replied that Purcell had made the note for his accommodation, and therefore if he, Fessler, would endorse the note, it would not be for Purcell’s accommodation, but for his, and then Fessler said, “I will endorse the note for you, if that is the case;” that Fessler then endorsed the note, handed it to Hilbert, who took it to the bank and had it discounted for $3,300, although it was written for $33. On the other hand, Fessler testified that all he intended to endorse was a note for $33, and that he saw that the note was so written when he endorsed it; that the first he knew about endorsing the note was when Hilbert called him on a telephone and asked him if he would endorse a note, to which he replied that he would, and that nothing was said about the amount of the note; that he asked Fessler where he was and he replied that he would be at the hospital; that Hilbert came there, handed him this note, which he looked at, saw it was for $33, and then endorsed it.

It is not necessary to recite all of Fessler’s testimony; it is sufficient to say that he absolutely denies all that Hilbert said with reference to the amount of the note, and says that after he endorsed it, he paid no further attention to it until after it was protested, and then he was told by an officer of the bank that it was for $3,300.

So far as the testimony of these two witnesses is concerned, it is practically the oath of one against the other, and under such circumstances, nothing more appearing, the credibility of neither witness being assailed, it cannot be said that the complainant has made out such a case as would warrant a reformation, for. in addition to the oath of Fessler, we have the very pertinent fact that the writing corroborates him. But the complainant urges that there are circumstances in this case which sufficiently corroborate Hilbert to bring the complainants’ case within the rule above stated. One is, that after the note was protested, Fessler and his attorney went to the bank and asked to see the note, and when it was presented, the attorney said, “Well that note is only for $33.” This circumstance, we think, rather makes in favor of the defendant, because if he knew he had endorsed a note for $3,300, he would hardly have gone to the bank and asked to see the note. On this point Eessler says that he went to the bank with his attorney because one of the directors told him that a note for $3,300, on which he was an endorser for Hilbert, had gone to protest, and when asked why he engaged counsel to go with him to the bank to see about the note, his reply was: “Well, when a man tells me a note has gone to protest for $3,-300, and if I had not endorsed such a note, why, I thought I ought to see somebody.”

The next circumstance relied on is, that Fessler had taken from Hilbert some bank stock as collateral. The paying teller of the bank testified that when Fessler and his attorney came to the bank to see about the note, Fessler said that he was secured, that Mr. Hilbert had assigned some stock to him, and asked whether the stock had been transferred on the books of the bank, and from this it is argued that the note must have been intended to be more than $33, otherwise Fessler would not have asked or taken security. But the attorney, who was with Fessler at the time, testified that nothing was said about the assignment of bank stock, and Fessler, as a witness, positively denied ever having had any such security, or any other security. Another witness, named Hannan, testified that Fessler told him that he had received an assignment as collateral security for the note, the equity in some stock, and that he showed him a written assignment, but all he recollected was that it was an assignment to Fessler as collateral security for the endorsement of a note, but was not sure, he was only giving the best of his recollection, and when asked whether the paper was not an assignment of some stock as security for any or all notes that Fessler might endorse, he was not able to say, nor did he recollect whether the paper he saw was signed by Hilbert, or anyone. Bui even if this be true, it is not proof that Fessler signed or endorsed, or intended to endorse this particular note as a note for $3,300, and, in view of the fact that Fessler denies any such assignment, we are not inclined to think that this evidence is sufficient to bring the case within the very strict rule required to be applied in cases of this character. It also appears that Dr. Hellstern was present when Fessler endorsed the note, and that he spoke to him about it, and that Fessler said that it was only a note for $33. The witness said that this conversation took place in the presence of Hilbert as he was leaving the room. He further testified that he was in the room with Fessler the day the note was endorsed, and that all Hilbert said was, “Here is the note,” and then Fessler took it and endorsed it and that nothing was said by Hilbert at that time about the amount of the note, nor did the witness know what the amount of the note was until Fessler said that it was $33.

We have examined very carefully all the testimony in the case and fail to find any which sufficiently shows that when the defendant Fessler endorsed this note he intended to endorse a note for $3,300, and there must be some evidence to satisfy us to a reasonable certainty that this was what he intended to do before we can safely say that there was a mutual mistake as to tire amount of the note. .The note itself is presumed to express the contractual intention of the parties at the time it was endorsed; Hilbert says that it does not, while, on the other hand, Fessler is just as positive that it does. And there are no circumstances proven in this case of such a clear and convincing nature as is required to justify a finding that Fessler intended to then endorse a note for $3,300, and, in the absence of such proof, equity ought not to reform a promissory note from $33 to $3,300, by the exercise of its great power to reform instruments, which has been described as “the high remedy of reformation.”

The decree will be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, White, Heppenheimer, Williams — 13.


text:
    Jennie Young, complainant, v. George J. Taylor et al., defendants.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    1. Where an agent, acting for a proposed purchaser of land, knowingly misrepresents the price fixed.by the owner, and thereby induces the purchaser to agree to pay a greater sum than the owner asks or receives, the difference being represented by a mortgage given to the agent, wno agrees to advance the sum secured by it to the owner for the purchaser’s account, which the mortgagor supposed was done, when in fact it was not, nor intended by the agent to be, advanced, but the mortgage retained by him for his own use at the expense and without the knowledge of the mortgagor, a court of equity will not aid the holder in reaping the fruits of such a transaction by a foreclosure of the mortgage.
    2. The purchaser having paid the full purchase price demanded by the owner, and given the mortgage to the agent upon the representation that it was required to make up the price asked by the owner, which was false, and the holder not having parted with anything for the benefit of the mortgagor, the mortgage has no consideration to support it and cannot be enforced in equity.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches.

      Mr. Edward P. Johnson, for the appellants.

      Mr. Clarence E. Case, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

This is a bill to foreclose a mortgage and the defence is that it was obtained through fraudulent representations, and that there was no consideration given by the mortgagee. The bill is filed by the assignee of the mortgage, but it is well settled that the assignee of a mortgage takes it subject to all equitable defences.

That a fraud was perpetrated on the mortgagor we think sufficiently appears from the facts which are, concisely stated, as follows: William H. VanDorn, a resident of Portland, Oregon, was the owner of a house and small lot of land near Readington, Hunterdon county, in this state, and had given John E. VanFleet a power of attorney to execute and deliver a deed therefor upon making sale, the price to be paid VanDorn being $1,000. One Sammis, a réal estate agent, residing in Somerville, learned in some way that it was for sale, and called upon VanFleet, who told him that the owner wanted $1,000'and he $50, and that the price was $1,050. Shortly after this, the defendant, being in the market for a small country home, called upon Sammis and made known to him his wishes, whereupon Sammis took him to see the property, and told him the owner wanted $1,800, and when asked if it could not be bought for less, said he did not know, but suggested that he offer $1,600 and make a deposit. This the defendant did, and as he had but $1,000, Sammis agreed to raise $600 on mortgage for him to enable him to pay the owner for the property. When the deed was delivered, Sammis took the mortgage for $600, and defendant paid the $1,000 in cash, and Sammis paid VanFleet, not only the $50 he had originally added to the owner’s price, but $25 more, which VanFleet demanded when he learned that Sammis was getting the mortgage for $600. Both VanFleet and Sammis knew that the defendant was buying the land and giving the mortgage upon the understanding that tire owner was being paid $1,600, when, in truth, it was not more than $1,050, assuming that VanFleet was acting as the agent of the owner in making the sale.

The net result being, that the defendant was induced by Sammis to pay at least $550 more than he would if he had dealt with the owner, or his agent, VanFleet.

If Sammis had told the,truth, no mortgage would have been necessary, but it is argued that he was not bound to do this as he was dealing with the defendant at arms’-length, there being no relation of trust or confidence existing between the parties.

We are not disposed to take that view under the circumstances of this case. Sammis does not pretend he was acting for the vendor, and if he owed any duty, it was to the vendee who applied to him for his services, and before rendering them he could have required a stipulation for his compensation, but whether he did so or not, if he undertook to find a property for defendant, even as volunteer, he had no right to benefit himself at the expense of his principal. This is not an ordinary case of an agent finding a purchaser for a vendor under promise of compensation by him. Sammis had no relation with the vendor, nor anticipation of reward from him, he was acting for the defendant and 'was bound to faithfully serve his interest. He was under no obligation to serve him, but when he undertook to do so, he had no right to create a false impression and profit by it to the injury of his principal, and equity will not lend its aid to him in reaping the fruits of such an unconscionable act. In addition to this, Sammis was undoubtedly acting for the defendant when he induced him to believe that the mortgage was given him because he was advancing $600 of the purchase price for defendant, and it was then his duty to disclose the truth which was that no money was being advanced by him to the owner. Rogers v. Genung, 76 N. J. Eq. 306.

There is another reason why this decree cannot stand, and that is, there was no consideration to support it. Assuming that VanFleet had full power to fix the price for the owner, he fixed it at $1,050, and that is all the consideration passing to the owner or for his benefit. It cannot be claimed, under the testimony in this case, that Sammis had any interest in the land for which the defendant contracted or agreed to pay. The mortgage was executed and delivered upon the promise by Sammis that he would advance that snm for the defendant in payment of the consideration for the land to the owner; this was never done, and is not required to be done, because the defendant paid the entire consideration except $50, which sum is all Sammis advanced on account of the mortgage, and to that extent alone is there any consideration. The $25 paid VanFleet, when he discovered that Sammis was obtaining the mortgage upon a false statement of the price the owmer was asking, was no part of the consideration for the land, but appears to have been paid to induce VanFleet not to disclose the true situation, but whether this be so or not, it is not pretended that it entered into the juice fixed for the land, for it arose after the sale had been contracted.

Our conclusion is, that the mortgage may stand for $50 and interest thereon from the date of the mortgage, and for no more.

The decree appealed from will be reversed, with costs, and the record remitted to the court of chancery that a decree may be there entered in accordance with the views here expressed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.


text:
    The Erie Elevator Company, The Long Dock Company and The Erie Railroad Company, appellees, v. The Mayor and Aldermen of Jersey City and A. Harry Moore, collector of Jersey City, appellants.
    [Argued July list, 1914.
    Decided December 1st, 1914.]
    1. The court of equity has no jurisdiction over the collection of taxes or municipal assessments in the absence of a specific equity.
    2. Where a city procures the adjustment of taxes, which are disputed and in arrears, under the “Martin act” (Comp. Stat. p. 5205), the report of the commissioners of adjustment when confirmed is binding on the city and taxpayer, and it becomes the duty of the officer, in whose office the record of taxes remains, to cancel all prior assessments and taxes which are included in the report.

      3. Where disputed taxes are adjusted, and the city demands and accepts the amount fixed by the commissioners of adjustment, it is thereafter estopped from demanding the payment of taxes levied prior to the adjustment which are included in the adjustment report which has been duly confirmed.
    4. A purchaser of the property, after the taxes have been so adjusted, and the amount paid, is entitled to rely upon the acts of the city in procuring an adjustment and demanding and accepting the amount of the adjusted taxes as a discharge of the lien of all prior taxes,- and the city is estopped from refusing to cancel such prior taxes, and from attempting to collect them, and equity has jurisdiction to enforce such, estoppel.
    5. The circuit court judge has power to open and set aside any .reported adjustment upon application, if the report fails to recognize legal principles, or if improvidently confirmed, and to again refer the matter to the commissioners of adjustment, and also to confirm the subsequent report.
    6. Where the statute requires the confirmed report to be filed with the city clerk and he renders a bill for the taxes as adjusted, according to a report on file in his office, and collects the taxes according to it, he will not be heard to say that no such report was made, beca.use, after eight years, none can be found in his office, for the presumption arising from his statement that it was filed in his office is not overcome by the mere fact that he cannot now find it there.
    On appeal from a decree of the court of chancery advised by Vice-Cliancellor Stevenson, whose opinion is reported in 83 N. J. Eq. 71.

      Messrs. Vredenburgh, Wall & Carey, for the Erie Elevator Company, the appellee.

      Messrs. Collins & Corbin, for the Long Dock Company and Erie Railroad Company, the appellees.

      Mr. Warren Dixon, for the appellants.
   The opinion of the court was delivered by

Bergen, J.

The collector of the city of Jersey City advertised the lands of the complainants for sale on August 14th, 1911, to make certain taxes, alleged to be unpaid, for the years. 1889 to 1902, inclusive, and the complainants filed their bill in equity praying an injunction to restrain the sale upon the ground that the taxes lawfully levied during the period named had been paid, and that the threatened sale, if allowed to proceed, would work an irreparable loss to the complainants by imposing a cloud upon the title of the lands advertised. The vice-chancellor found that the taxes which had been levied upon the property had been paid and advised a decree that an injunction issue restraining the sale. From this decree the defendant appeals. The record shows that certain taxes levied against this property for years 1884 to 1895, inclusive, being disputed and unpaid, were adjusted by commissioners appointed for that purpose under the statute commonly called the “Martin act” (Comp. Stat. p. 5205), who made a report, referred to in the present record as No. 104, adjusting taxes in arrears, which report was duly confirmed by the circuit court; that thereafter, by due proceedings, this adjustment was brought under review in this court where it was adjudged that the same be set aside as to certain taxes, vide: In the matter of the taxation of the Erie Railroad Co., 65 N. J. Law 608. This case also determined that the state had collected taxes belonging to the city, and to correct this the legislature, in 1903 (P. L. p. 22), directed and empowered the proper state officers to pay to Jersey City the amount of taxes unlawfully collected by the state, and which this court had adjudged belonged to the city. In the meantime other taxes had accrued, and in order to comply with the principles laid'down in the case last cited, it was deemed necessary by all parties in interest to have the confirmation of report 104 set aside, which was done by the circuit court judge, upon the application of the city with the consent of all the complainants in this cause, and the question of the adjustment of the unpaid taxes for the years now in controversy, was submitted to the commissioners of adjustment who adjusted the taxes and fixed the amount due in their report thereof, called in this record No. 110, which the complainants claim was duly confirmed, and the amount therein fixed paid by the Erie Elevator Company to the city in 1903, it having rendered a bill for the same, as “taxes, assessments and water rents as adjusted, determined and laid by the commissioners of adjustments,” which was duly receipted by the collector of the city. The power of the circuit court to open the former confirmation is questioned, and the making of the order confirming report No. 110 is denied, by the appellant, which will be subsequently dealt with. Assuming for the present that the power to open the order confirming the earlier report existed, and that the making of the second order was proven, we then have the situation of taxes in arrears, which were disputed, a lawful adjustment and payment thereof, and an attempt by the collector to sell complainants’ land to make taxes which have been paid, the payment of which the collector has no authority to enforce by a sale of complainants’ land, which, if not restrained, will result in a certificate of sale of complainants’ property for taxes, having all the mdicia of a legal proceeding, thereby imposing a cloud upon complainants’ title. As the jurisdiction of the court of chancery to restrain this sale is challenged, it will, if the contention be sound, be unnecessary to consider the other questions raised, and therefore that important question should be first disposed of. That the court of equity has no jurisdiction over the collection of taxes or assessments made in the course of municipal improvements, in the absence of specific equities, must be taken to be settled in this state. Jersey City v. Lembeck, 31 N. J. Eq. 258; City of Elizabeth v. Shirley, 35 N. J. Eq. 515. But an equitable estoppel in pais has always been recognized as a ground of equity jurisdiction, of which it is not, in all cases, deprived, because the estoppel may also be available at law, and therefore if, in the present case, the conduct of the defendant has been such as to raise an equitable estoppel, equity would have jurisdiction. We are of opinion that the proofs in this case show a situation arising from the acts of the city, which estops it from repudiating the result of the last adjustment of these disputed taxes.

The proceedings to adjust them were instituted by a resolution of the board of finance of the city adopted July 28th, 1903, in which the basis of the adjustment requested was shown as to each year, and also the sums claimed to be due for taxes. As the amount of taxes claimed to be due by a statement annexed to the resolution, is the sum fixed by the commissioners of adjustment, the inference is warranted that the amount was the result of an agreement between the parties, as they were all applicants for the appointment of commissioners of adjustment, either as petitioners or consenting thereto. After the adjustment report was approved, as complainants claim, the city rendered a bill for the adjusted sum, and -accepted payment thereof, the amount being $261,603.34. What the city is now threatening is to sell the complainants’ property for taxes levied before the adjustment, crediting the sum paid on account of such prior taxes.

The statute which the city invoked for the purpose of adjusting the taxes provides, among other things, that the report of the commissioners upon being confirmed by the circuit court “shall be final and conclusive upon tire said city,” and also upon the landowner, and that the amount fixed by the commissioners shall be a lien upon the land “in lieu and instead of all outstanding claims of the'city for arrearages of taxes.” The statute further provides that the city comptroller, city collector, city clerk, or other officer in whose office any record of taxes shall remain, shall forthwith cancel all prior liens for taxes held on the lands included in the report, so that, in this 'case, it was the duty of the city officer, in whose office the record of taxes remain, to cancel all liens.for taxes included in the report, levied prior to the making and confirmation thereof.

When these taxes were adjusted the title to the land was in the Erie Railroad Company, subject to a lease to the Erie Elevator Company, which owned the buildings erected on the land by a prior tenant, and the disputed taxes were assessed against the Erie Elevator Company, which paid the amount adjusted October 13th, 1903, and in 1911 that company assigned its interest in the property to the Long Dock Company. The lease contains a' covenant that the tenant will pay, as part of the rent, all taxes and assessments imposed by law on the leased premises, which covenant the Long Dock Company assumed in the assignment of the lease to it. We axe of opinion that under the circumstances of this case the Long Dock Company is entitled to the protection of the statute which required the city collector, or other proper city officer, to cancel all arrearages of taxes levied prior to the adjustment, and that the city is now estopped from claiming that such prior taxes were not canceled, for what in equity the city should do will'be considered to have been done.

This case is, in principle, similar to that of City of Elizabeth v. Shirley, supra,, in which the city comptroller gave a certificate to a proposed purchaser that an assessment which was a lien against the property had been paid, and she relying upon it, paid the purchase price. The assessment was subsequently set aside, and a re-assessment made, which the city sought to enforce against the land. This 'court held that the certificate estopped the city from collecting the new assessment against the land, and set it aside upon the ground that equity had jurisdiction to enforce the estoppel. In the case at bar, if the city had performed its statutory duty and canceled the prior taxes, the city would have no basis for the proposed sale, and we have no doubt of the right of a court of equity to compel the city to cancel the taxes now sought to be enforced, and to restrain a sale for taxes which will have no existence, if canceled, as required by the statute, and that the Long Dock Company had a right to assume, when the last adjustment report was confirmed, that the city had canceled all prior taxes, and that when it accepted payment of the adjusted sum, it had no further lien on the property.

The case of Muller v. Bayonne, 45 N. J. Eq. 237, is not in conflict with the foregoing, for in that case no effect was given by law to the certificate of search by the city clerk, as was the situation in the Shirley Case, supra, as is pointed out in the opinion in the case cited, while in the present case the statute made it the duty of the city to cancel all prior assessments included in the adjustment, and the city is now estopped to take advantage of its neglect to perform its statutory duty. The right of complainants to the benefit of this estoppel is a specific equity, and under the rule in the Shirley Case, supra, equity has jurisdiction to decree the cancellation of all arrearages of taxes included in report No. 110, except as therein adjusted, and, as incident thereto, to restrain a sale for such arrearages.

In addition to what has been said, section 12 of the statute under which the adjustment was made (P. L. 1886 p. 149; Comp, Stat. p. 5216 § 317), provides that no writ of certiorari shall be allowed to contest or'set aside any tax, assessment or lien fixed or determined by the commissioners of adjustment of taxes, unless the application therefor be made within six months from the confirmation of the report. It appears in this case that immediately upon the tax being adjusted, a bill was rendered for the same and a receipt given therefor upon payment, so that by the act of the city, the complainants were naturally led to believe, and had a right to believe, that the proceedings were in due legal form; that the taxes thus compromised and paid, which are now sought to be collected, had been canceled; that the record would disclose that they were no longer a lien upon the land, and, as they had no reason to believe anything to the contrary, no writ of certiorari to review the proceedings, or the record concerning them, was applied for within the statutory period, and to now permit the city, nearly eight years after the settlement, to disregard it, long after the right to writ of certiorari to review the adjustment proceeding had expired by limitation of law, would be most unconscionable, if not a fraud, which equity should prevent the perpetration of by enforcing the estoppel which arises from the conduct of the city. But the appellant assails the adjustment proceedings taken in 1903 and claims the right to sell the complainants land to make the taxes as adjusted by the report known as No. 104, crediting thereon the amount paid in satisfaction of the adjustment made by report No. 110, upon the ground that the circuit court had no authority to set aside the order confirming report No. 104, in order that a new adjustment might be made in accordance with the judgment of this court.

We think that the circuit court has the power to set aside such an order if it appears to have been improvidently made, or where an appellate court has determined that the adjustment has been made upon illegal principles, and to send the report back to the commissioners to make a legal adjustment, and that it has the power to confirm, in the manner prescribed by law, the new adjustment such commissioners may report. The next point made by the appellant is, that granting the power of the court to open the confirmation of No. 104, still it is not made to appear that there was any order confirming No. 110. The order confirming the last reported adjustment, it is said, cannot be found. But there is evidence which justifies the finding that such an order was made. Among other facts, it appears that the bill rendered by the city for the adjusted taxes, which the collector receipted, expressly states that the adjustment was “confirmed by Hon. Chas. W. Parker, Judge of the Circuit Court, and filed in the office of the city collector, September 25th, 1903.” Thus it appears by the certificate of the collector that the adjustment report was confirmed; that the confirmation was filed in his office, and that it was acted upon by the collector when he collected the taxes according to that adjustment, otherwise he would have had no authority to collect the taxes or receipt for them, and the city cannot, now, after eight years have elapsed, because of the failure to find the order, which it is admitted was made and filed with the city collector, deny its existence at the time it was acted on and a course of action followed which was necessarily based upon the order.

The statute requires that the confirmation shall be sent to the comptroller of the city, or other officer collecting assessments, to be filed by him in his office. It was, therefore, according to his statement, left in the care of the city collector, and the presumption is that he has it, or at least did have it, which is not overcome by the mere fact that he is not now able to find it in his office. The decree below omits an adjudication that the prior taxes shall be canceled; this, we think, ought to be done, as the refusal or neglect to do so continues the lien and therefore imposed a cloud upon the title to the property, and, as we hold, equity has jurisdiction to enforce the estoppel, it should do complete justice and remove the lien which is a menace to the title. This was done in City of Elizabeth v. Shirley, supra, where the assessment, which the city was estopped from collecting because of a specific ground of equity growing out of a certificate authorized by law and binding on the city, was set aside.

With this modification the decree below will be affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Williams — 11.

For reversal — None.


author: Minturn, J.

text:
    Industrial Savings and Loan Company and George C. Van Tuyl, Jr., superintendent of banks of the State of New York, complainants-respondents, v. Grace Frances Plummer et al., defendants-appellants.
    [Argued June term, 1914.
    Decided December 1st, 1914.]
    The defendants desiring to purchase a plot of ground, with a building thereon, at Grantwood, negotiated for over three months with the agent of the vendor,' and at the end of that period accepted title subject to •first and second mortgages. They resided on the premises without complaint for some years, paying interest upon both mortgages, and reducing the principal of the second, until the bill in this case was filed to foreclose the latter mortgage, when they alleged fraud as a defence by reason of the fact that the agent had excessively valued the property at the time of sale. Ample opportunity to examine the property and verify the representations of value had been given prior to the purchase. — Held, that the opportunity of examining the property and its value, and of verifying the representations made, cast a duty upon the defendants of exercising reasonable diligence in their own behalf upon estimates of value, which were open to their observation, judgment and investigation, and in the absence of actual fraud, relief upon that ground alone will not be afforded in equity. In such a situation the doctrine of caveat emptor applies.
    On appeal from a decree of tlie court of chancery advised by Yi ce-Chancellor Stevenson.

      Mr. J. Boyce Smith, and Mr. Frederick P. Schenck, for tlie respondents.

      Mr. Frank G. Turner, for the appellants.
   The opinion of the court was delivered by

Minturn, J.

The bill was filed to foreclose a second mortgage executed and delivered under the following circumstances: The Columbia Investment and Real Estate Company developed a tract of land on the Palisades known as Grantwood, in the county of Bergen. It expended a large sum of money in building streets, erecting houses and constructing the ordinary municipal improvements preparatory to advertising and exploiting the location as a desirable site for homes.

The houses and lots were sold according to a schedule of prices, depending upon the site and the character of the building. The defendants purchased three lots, upon which, was located an eight-room cottage. The intermediary was an agent of the company, whose efforts to bring about a sale to defendants were instituted about a month prior to its consummation.

Upon more than one occasion during the interval the defendant Grace E. Plummer visited the place, with her husabnd and friends, and familiarized herself with the location and its inherent merits and disadvantages, as well as its financial value in the real estate market. She declined to purchase the building and two of the lots for $14,500, but after discussing the subject with her husband, offered to purchase the plot in question for $13,000. The offer being accepted, she paid $1,000 in cash and agreed to take the property, subject to a first- mortgage of $7,500 held by the New York Mortgage Company, and to execute a second mortgage for the difference of $4,500.

The second mortgage was made to one Mathews, who is conceded to have been an employe and dummy of the complainant. He subsequently assigned the mortgage to the complainant company, which paid the face thereof to the Columbia company.

Thereafter defendants continued to make the- payments on account of principal and interest, provided for in the second mortgage, for a period of nearly four years.

These payments were divided so as to cover interest on- the s first and second mortgages, and a reduction of principal upon the second mortgage, and continued until March 29th, 1912, when they ceased. At the trial there was found to be due, upon the second mortgage for interest and principal, $4,908.59.

The answer of the defendants alleges that at the time of the sale the value of the property was misrepresented to the defendants by the agents of the Columbia company, who conspired with the New York Mortgage Company and the complainant, the Industrial company, to misrepresent the value of the property, and practically to cheat and defraud the defendants into purchasing for $13,000 property which in reality was of no greater value than $6,000. Upon the truth of this allegation the defendants insist upon an abatement of the mortgage in suit to accord with the true value of the property.

The learned vice-chancellor, after consideration of the testimony, advised a decree in favor of the complainants. Our examination of the case has led us to concur in that view.

The fundamental inquiry is whether the testimony presents a case of fraud and imposition upon these defendants clear enough to warrant the court in practically annulling, pro tanto, their sealed written instrument, solemnly executed. Without discussing the subsidiary questions, whether upon a mere allegation of fraud in an answer, without any attempt to compel the appearance of the alleged principal fraud-doer, the Columbia company by cross-bill, such a judicial inquiry may be had, we are satisfied that the conduct which is alleged in this answer to be fraudulent upon the part of the agents of the Columbia company was not of the questionable quality which the law characterizes as fraudulent, for the purpose of annulling a legal instrument. A glance at the situation of the parties will evince this.

For months the defendants had been negotiating with the agents of the Columbia company. No delation of confidence existed between them, so that during the interval between their negotiations and the execution and delivery of the deed, the defendants were free to verify any representations or statements as to value which the agent had made. They examined the property, and its entire environment, and no effort, artifice or subterfuge seems to have been employed to pervert their judgment or becloud their sense of observation and discernment. In this situation they were dealing at arms’-length. Speaking of the relative duties of parties in such a posture, Chancellor Kent says: “The common law affords to everyone reasonable protection against fraud and dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information. Every person reposes at his peril in the opinion of others, when he has equal opportunity to form and exercise his own judgment. Simplex commendatio non obligat.” 2 Kent Com. 485; Davis v. Meeker, 5 Johns. (N. Y.) 354.

“Courts of equity, like courts of law, do not aid parties who will not use their sense and discretion upon matters of this sort.” Willard Eq. Jur. 152.

Under such circumstances, the doctrine of cameat emptor is equally applicable at law and in equity. Willard Eq. Jur. 152. Lord Campbell in Duke of Beaufort v. Neeld, 12 Cl. & Fin. 248.

The application of these fundamental principles is illustrated by the following cases in our own jurisdiction: Miller v. Gregory, 16 N. J. Eq. 275; Wise v. Fuller, 29 N. J. Eq. 258; Conlan v. Roemer, 52 N. J. Law 53; Hallinger v. Zimmerman, 59 N. J. Eq. 644.

But the equitable status of these defendants is further complicated by the fact that for three years and over they occupied the mortgaged premises, and continued so to do at the time of the trial, and until this bill was filed, and during that period made no claim and uttered no protest to fortify themselves in the attitude they now take as the alleged victims of fraud-doers. Such a complacent attitude is inconsistent with their present claim and does not enlist the favorable consideration of a court of conscience.

The court of chancery will refuse its aid, not merely to a party who fraudulently misrepresents his title, but also to one who remains silent when duty, candor and fair dealing require him to speak out. Ross v. Elizabetown Railroad Co., 2 N. J. Eq. 422.

“Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; when these are wanting the court is passive and does nothing.” Lord Camden in Smith v. Clay, 3 B. C. C. 639, quoted by Vice-Chancellor Green in DeGrauw v. Mechan, 48 N. J. Eq. 224.

The legal status of the banking commissioner of the State of New York, as a party complainant, was not challenged by any appropriate pleading in the ease, as was done in Hurd v. Elizabeth, 40 N. J. Law 218, and the attack at this time therefore may property be subject to the criticism that it is urged too late. Hoagland v. Supreme Council, 70 N. J. Eq. 607; 2 Mad. Ch. Pr. 281.

But, conceding the correctness of defendants’ contention, it cannot avail, since, under the circumstances presented here, the complainant corporation is entitled to a degree of foreclosure, regardless of the status possessed by the New York banking commissioner as a party to the suit.

Our examination of the remaining objections leads us to conclude that they are without merit..

Finding no error in the record, the decree of the court of chancery will be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Heppenheimer, Williams — 13.

For reversal — None.


author: Per Curiam.

text:
    Hurley-Tobin Company, respondent, v. Courtland Y. White, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 60.

      Mr. Peter Backes, for the respondent.

      Messrs. Wescott & Weaver, for the appellant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


text:
    Aaron M. Cohen, appellant, v. Augustus C. Pool, respondent.
    [Submitted December 7th, 1914.
    Decided January 27th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is' reported ante p. 77.

      Mr. Abe J. David, for the complainant.

      Mr. Foster M. Voorhees, for the defendant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Williams — 14.

For reversal — None.


text:
    Alexander F. McKenna, appellant, v. Mary McKenna, respondent.
    [Argued December 1st, 1914.
    Decided January 27th, 1915.]
    On appieal from a decree of the court of chancery advised by Advisory Master Maximilian T. Rosenberg, who filed the following opinion:
    When the testimony was closed in this case I announced my conclusions very briefly, adding that if the case were .appealed I should take the opportunity of stating them with more elaboration.
    The petition is filed by the husband against the wife, alleging adultery. The proof is entirely circumstantial, and the design of the petitioner’s counsel is to bring the case within the familiar rule that where desire to commit adultery and the opportunity to do so are both shown to have existed, the court will infer that the act of adultery has been committed. In the present case, while there was abundant opportunity, the evidence falls far short of satisfying me that there was any desire on the part of either the defendant or the corespondent to commit adultery. Both the defendant and the corespondent have taken the stand, positively denying the commission of any act of adultery, and with equal positiveness denying the existence between them of anything more than friendship and desire for social intercourse. That the defendant when separated from her husband was indiscreet in permitting the corespondent to call upon her and to-take her out in the evening to social gatherings, admits of no-dispute. But indiscretion is not criminality. As was said by Chancellor McGill, in the case of Hurtzig v. Hurtzig, N. J. Eq. 329, which was the case particularly relied upon by the petitioner’s counsel in his argument:

      “The main difficulty in the application of this rule, i. e. (the rule that guilt will be inferred from the existence of desire and opportunity), is in the determination, from circumstances, of the condition of the minds of the defendant and her particeps criminis. This suggestion shows the necessity in such determination, of the application of the precautionary test, that to establish adultery the circumstances must be such as to lead the guarded discretion of a reasonable and just-man to the conclusion of guilt. The judgment must not be rash and intemperate, moving upon appearances that are equally capable of two interpretations. If the circumstances, taken both singly and together reasonably admit of two interpretations, that interpretation which favors innocence should be adopted.”
    In the same case Chancellor McGill also says:
    “The crime is almost invariably clandestine, and committed only when every precaution is taken to preclude the possibility of its discovery. Familiar indicia of it are: loss of affection that is due to, and was bestowed upon, its legitimate object, and the bestowal of affection upon an unlawful object; stolen interviews; private correspondence; amorous and passionate utterances; personal freedom; in decent ^familiarity; compromising situations; and the like. There may also be slight, delicate and indefinable circumstances, proximate to the adultery and peculiar to a given case, that, though less prominent as mdida, are, nevertheless, powerful factors in producing conviction of guilt.” In this case it is in evidence, as I have intimated, that the corespondent was in the habit of visiting the defendant at her residence and sitting with her in the sitting-room. There was no secrecy about his visits. The other people in the house and in the apartment were perfectly aware of them. On one or two occasions, it is true, they sat in this room in the early evening with the lights out; but it is admitted that other people in the house did the same thing, and that it was only the usual precaution which is taken on summer evenings in mosquito-infested communities. On other occasions the corespondent took the defendant out to dances in public places, sometimes accompanied by others and sometimes alone. There is a dispute as to the hours at which they were accustomed to return. On several occasions they were seen in the hall of the house in which the defendant lived, but there is no evidence to show undue familiarity or compromising situations, or anything in fact which would show an illicit passion by one for the other. As I have said, both parties on the stand deny the existence of anything more than friendship. The manner of both the defendant and the corespondent on the stand impressed me very favorably and their evidence as that of truthful persons. The language of Mr. Justice Garrison, speaking for the court of errors and appeals, in Osborn v. Osborn, 44 N. J. Eq. 257, 261, applies in this case:
    “Adultery is not shown, nor are the elements of lust, lewdness, depravity or secrecy, the invariable concomitants of criminal conversation, to be found in the proofs. If we give the testimony the construction most unfavorable to the defendant, a decree based upon adultery must rest upon one of two grounds: either that opportunity is tantamount to guilt or that a decree may rest upon a crime half proven, even though the half it rests upon is the half that is not proven."
    I do not think that it is necessary for me to review the evidence any more extensively than I have. The result, to my mind, leads to a dismissal of the petition, and a decree is advised to that effect.
    The case of Cooper v. Cooper, reported since my determination in the present case, is very much in point. In that case, Vice-Chancellor Backes, whose opinion is reported in 82 N. J. Eq. 581, declined to advise a decree for the husband, although the evidence was apparently very much stronger against the wife than in the present case. The decree in that case was affirmed by the court of errors and appeals on the opinion of the vice-chancellor. 82 N. J. Eq. 660. I might almost have adopted the language of the vice-chancellor in loiidem verbis in the present case.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion hied in the court below by Advisory Master Rosenberg.

For affirmance — The Chief-Justice, Garrison, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Terhune, Heppenheimer-12.

For reversal — Swayze, White, Williams — 3.


text:
    Marie Berg, appellant, v. Arthur J. Baldwin et al., respondents.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 90.

      Mr. William F. Blackman, for the appellant.

      Messrs. Magoffin & .Signor, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams-15.

For reversal — None.


text:
    Trenton Trust and Safe Deposit Company, respondent, v. Joseph H. Moore et al., defendants, and Eliza A. Moore, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 83 N. J. Eq. 584.

      Mr. Linton Satterthwaite, for Eliza A. Moore, the appellant.

      Messrs. James & Malcolm G. Buchanan, for the complainant.

      Mr. John T. Temple, for the defendant Nelson L. Petty, executor, and others.

      Mr. Scott Scammell, for the executor of Eckford Moore.

      Messrs. McDermott & Enright, for Elizabeth Howell and others.

      Mr. Charles E. Gummere, for Joseph H. Moore and another.
   Per Curiam.

The decree in this case is affirmed, for the reasons stated in the opinion of Vice-Chancellor Backes.

For affirmance — Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Terhune, Heppenheimer, Williams — 12.

For reversal — None.


author: Pee Curiam.

text:
    Jennie R. Adrain et al., appellants-respondents, v. Jean Livingston Koch et al., appellants-respondents.
    [Argued December 2d, 1914.
    Decided March 1st, 1915.]
    On appeal .from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. 484.

      Messrs. Pitney, Hardin & Skinner and Messrs. Linddbury, Depue & Faulks, for the complainants.

      Mr. Edward M. Colie, for the defendants.
   Pee Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chan5 •cellor Howell.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


text:
    John Armstrong, appellant, v. Joseph William Griffin et al., respondents.
    [Argued November 20th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 83 N. J, Eq. 599.

      Mr. Joseph Anderson, Sr., for the appellant.

      Mr. Robert Carey, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Heppenheimer, Williams —14.

For reversal — None.


text:
    Mayor and Common Council of Boonton, respondents, v. United Water Supply Company, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 83 N. J. Eq. 536.

      Mr. Frank H. Pierce, for the respondent.

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

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


text:
    William Dolton, respondent, v. Public Service Electric Company, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by VicerChancellor Backes, whose, opinion is'reported in 88 N. J. Eq. 560. ' . .

      Mr. Frank Bergen, for the appellant.

      Mr. Richard S. Wilson, for the respondent.
   Per Curiam.

For the reasons stated in our opinion filed at the present term in the case of Thropp v. Public Service Electric Co., ante p. 144, the decree under review will be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.


text:
    The Germania Building and Loan Association, respondent, v. B. Frankel Realty Company et al., appellants.
    [Submitted July 6th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court, of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 82 N. J. Eq. 49.

      Mr. Gharles B. Gurney and Mr. Frank E. Bradner, for the respondent.

      Mr. I-Iugo Woemer, for the appellants.
   Pee Curiam.

The decree in this case is affirmed, for the reasons stated in Germania Building and Loan Association v. B. Frankel Realty Co., ante p. 164, just decided.

For affirmance — The Chief-Justice, Garrison, Swaaze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Heppenheimer, Williams —14.

For reversal — None.


text:
    Liddy Moore, respondent, v. William Moore, appellant.
    [Submitted December 7th, 1914.
    Decided January 27th, 1915.]
    On appeal from a decree of the court of chancery advised by Advisory Master McDermott.

      Messrs. Ward & McGinnis, for the respondent.

      Messrs. Hunziker & Randall, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master McDermott.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.