text:
    WOODWARD TINGLE DICKERSON AND CAMDEN TRUST COMPANY, EXECUTORS AND TRUSTEES UNDER THE WILL OF EDWIN STUART DICKERSON, DECEASED, PLAINTIFFS, v. MARGARET W. DICKERSON, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 9, 1948.

      Mr. Grover C. Richman, Jr., and Messrs. Boyle, Archer & Greiner, by Mr. Frederick P. Greiner, for complainants.

      Mr. Lawrence V. White, for Camden Lodge No. 293 Benevolent and Protective Order of Elks.

      Mr. Dean S. Renwick, for Ellen Dale Holten, Eleanor H. Johnson.

      Mr. Augustine A. Repetto, with whom was associated Mr. John V. Espenshade, of the Philadelphia Bar, for E. Stuart Dickerson, Jr., Elizabeth E. Dickerson, E. Stuart Dickerson, guardian ad litem for Elizabeth W. Dickerson and Adrienne S. Dickerson, minors, Elizabeth E. Dickerson, William Slim and Joseph C. Buchanan, trustees under deeds of February 19, 1944, for Elizabeth W. Dickerson, Elizabeth E. Dickerson and Adrienne S. Dickerson.

      Messrs. Powell & Parker, by Mr. Harold T. Parker, for Grace T. Shay, Nellie Williams and Arthur Shay, and Grace T. Shay, administratrix of the estate of Virginia D. Shay, deceased.

      Mr. George W. C. McCarter, for W. Tingle Dickerson, his wife, Margaret W. Dickerson individually and as guardian for Carol E. Dickerson, Mary W. Dickerson and William W. Dickerson, minors.

      Mr. Edward I. Berry, for All Hallows Parish and “The Rector, Wardens and Vestrymen of Grace Church, Merchantiville, New Jersey.”

      Mr. Frank F. Neutze, for West Jersey Hospital.
   Berry, J. S. C.

(Orally.) The only issue, as I stated, which is now before the Court is that raised by the last paragraph in the answer of Edwin Stuart Dickerson, Jr. and which was the subject of a motion to strike. Vice-Chancellor Woodruff held the answer was proper and the issue raised by that paragraph in the answer was not disposed of by him, and that issue is whether or not there was ari assignment by Woodward Tingle Dickerson of his annuity to his brother, Edwin Stuart Dickerson, Jr. as consideration for his executing, or approving of two claims of his mother to securities which were in the safe deposit box of the decedent.

The claim is not of an absolute assignment but only of an assignment of a preference. In other words, Edwin Stuart Dickerson claims he was entitled to receive all of his annuity before Woodward Tingle Dickerson received any of his.

Of course, the burden of proving any such assignment is on the person who asserts it. In my judgment that burden has not been sustained. As I read the testimony, or interpret the testimony, and read the exhibits which have been offered in evidence, the only evidence of an assignment, written evidence of an assignment, is that contained in two letters written by Woodward Tingle Dickerson to his brother— one written' to his brother, and the other to the trust company. Even the letter written to his brother does not refer to anything except certain instalments of the annuity which were then due or about to become due, and the letter to the trust company refers only to two specific instalments. The receipts which have been offered in evidence to substantiate the claim that Edwin Stuart Dickerson’s mother, the widow, attempted to' carry out an agreement which she made with him, show two payments of $250.00 each and one payment of $120.00, at about the time certain instalments of the annuity were to fall due, but those receipts expressly show that those advances were in the nature of loans and nothing else. So I think there can be no question at all but that the burden of proof showing this alleged assignment has not been sustained, and I find 'there was no such assignment.

There is another phase of this matter which, it seems to me, everybody must have overlooked. The agreement which is alleged here is an' agreement to approve a dishonest claim against the estate in consideration of a guarantee that this defendant would receive his annuity. Now, that is an illegal agreement, in my judgment, and. certainly this court would not enforce it. This court would never lend itself to the enforcement of a fraudulent agreement, a,nd if -the defendant participated in a fraudulent scheme to have the executors pay a dishonest claim he is in the wrong court to get relief, because he will never get .it here. But there is no proof that there was a dishonest claim. As a matter of fact, the proof is all the other way. ‘ The claim was approved, as compromised, by the Camden County Orphans’ Court, and that settles it. As far as the legality of that claim is concerned it is not in issue now.

Another issue, or question, in addition to the issue touching the alleged assignment, is raised by the form of decree submitted by Mr. Repetto. In that form he provides for interest to the two annuitants, Woodward Tingle Dickerson and Edwin Stuart Dickerson, Jr., on the deferred instalments of the annuities due them. I have made some research of the law touching this point and I have reached the conclusion that these annuitants are- not entitled to interest on the deferred instalments. The annuities were not strict annuities but income annuities payable only out of income, and the only reason they were not paid was because there was insufficient income to pay them. The executors and trustees were n'ever in funds to pay these annuities and the payments were not withheld for any reason other than the income was insufficient to pay them. Had the executors and trustees had sufficient income to meet these payments another question' would have arisen and then the claim for interest might have been more analogous to that of a claim for interest on a legacy the payment of which was withheld for more than a year after testator’s death.

My decision on the interest question is therefore that neither annuitant is entitled to interest on the deferred payments.

This matter will be set down tentatively for Friday of this week for the settlement of the terms of the final decree. I understand Mr. Repetto is to arrange for postponement of another case in order to be present on Friday and he will notify other counsel as to whether or not he will be able to be present on Friday. If not, another day will be fixed.


source: Caselaw Access Project

author: Donges, J. S. C.

license: Public Domain

text:
    JOHN MASSARO AND JOHN SANTAMARIA, PLAINTIFFS, v. GIACOMO CIGOLINI, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 27, 1948.

      Mr. Samuel Moskowitz, for plaintiffs.

      Mr. Bernard S. White, for defendant.
   Donges, J. S. C.

Plaintiffs filed, a bill of complaint alleging that they were the owners of lands adjacent to that of defendant, in the Borough of Fairview, Bergen County, New Jersey; that defendant was erecting a building upon his land which did not comply with certain provisions of an ordinance of the Borough of Fairview, with respect to providing for a rear yard and for a side yard.

Hearing was had and the matter was submitted for determination.

The bill prays that defendant “be restrained and enjoined from using said lands contrary to the zoning ordinances of the Borough of Fairview”; and that defendant “be enjoined and restrained from erecting any building or structure contrary to the Zoning Ordinance of the Borough of Fairview as is set forth in such ordinance and that it be decreed that the defendant, Giacomo Cigolini, make his building conform to the requirements of the aforesaid zoning ordinance.”

It has been held that “a court of equity will not enforce municipal ordinances by injunction, unless the act sought to be restrained is a nuisance.” Srager v. Mintz, 109 N. J. Eq. 544, 158 A. 471 (E. & A. 1932). In the instant case the only relief sought is enforcement of the municipal ordinance, and it comes squarely within the ruling of the court of last resort in the cited case.

It is not prayed for in the bill, but the plaintiffs’ brief urges that plaintiffs as adjoining property owners, who suffer interference with their light and air, may enjoin the violation of the ordinance. As stated above, the bill does not seek such relief, but, assuming that it did, the proofs fail to establish that plaintiffs’ right will be invaded. The proof is that defendant’s building sets back from the lines of plaintiffs’ several buildings, and it does not appear that irreparable damage to plaintiffs’ properties will result. Nor is there any proof of an easement of light and air. Engel v. Siderides, 112 N. J. Eq. 431, 164 A. 397 (E. & A. 1932); Blumberg v. Weiss (E. & A. 1940), 129 N. J. Eq. 34, 17 A. 2d 823 (E. & A. 1940).

The bill of complaint will be dismissed with costs.


author: Freund, J. S. C.

text:
    FRANCIS LEON CHRISMAN, JR., ET ALS., PLAINTIFFS, v. CORNELL UNIVERSITY, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 27, 1948.
    See, also, 132 N. J. Eq. 178, 27 A. 2d 627.

      Messrs. Gilhooly & Yauch (Mr. Edward J. Gilhooly), for the plaintiffs.

      Mr. Alfred C. Clapp, for defendants Charles Dana Chrisman and Dorothy June Chrisman Miller.

      Mr. James E. Fagan, for the defendant Boyer Chrisman.
   Freund, J. S. C.

The plaintiffs, trustees under the last will and testament of Francis Leon Chrisman, filed a petition for advice respecting the division of the residuary estate of the decedent, and the defendants join in the prayer.

The pertinent clause of the will provides :

“6 — (d) I direct my said trustees, after setting aside the fund provided in the preceding clause of this will, to invest the remainder of my residuary estate and to keep the same invested in good and lawful securities, and pay over the net income arising therefrom to my wife, Carrie L. Chrisman, so long as she shall live, with the provision that in the event of her serious illness or other dire necessity my trustees may use such portion of the principal as they may deem necessary for her support and comfort.
“I further direct that my trustees shall pay from the said trust fund all the expenses of my wife’s last illness and funeral.
“Upon the death of my wife, Carrie L. Chrisman, I direct that my residuary estate shall continue to be held in trust by my trustees, to bo divided among and paid over to such grandchildren of mine as shall be living at the time of my death, and shall live to attain the age of twenty-five years, each grandchild to receive the income from his or her share after attaining the ago of twenty-one years, and the principal when he or she attains the age of twenty-five years.
“In the event of the death of any of my grandchildren survivipjr me before attaining the age of twenty-five years, the share of such deceased grandchild shall be divided among the surviving grandchildren.
“If there are no grandchildren surviving me then I give, devise and bequeath my residuary estate, after the death of my wife to the Trustees of Cornell University, Ithaca, New York, absolutely.”

The testator died on August 12, 1934 and his wife on November 25, 1940. At his death there were three grandchildren living. Subsequent to his death, a fourth grandchild was born, so that there were four grandchildren living at the time of the death of testator’s widow. The question upon which advice is sought is whether the residuary estate should be divided among the three who were living at the death of the testator or among the four grandchildren living at the death of Mrs. Chrisman, when the division of the residuary estate was directed to take place.

Evidently the will is that of an intelligent man of substantial means and drawn by counsel. Subsequent to its execution it was examined, reviewed and altered by two codicils. It contains carefully considered trust provisions for the benefit of his widow, grandchildren and contingent beneficiaries. It contains bequests to charitable, religious and educational institutions for worthy and highly commendable purposes. It bears all the earmarks of a will of a fine cultured gentleman who had given thoughtful consideration to the distribution of his estate among the objects of his bounty.

The directions for division and distribution are clear and unambiguous. They are not susceptible of misinterpretation. The testator said “Upon the death of my wife, Carrie L. Chrisman, I direct that my residuary estate shall .continue to be held in trust by my trustees, to be divided among and paid over to such grandchildren of mine as shall be living at the time of my death.”

The function of a court is to construe a will so as to give effect to the intention of the testator, but the court can not make a new will for him. Marshall’s Exrs. v. Hadley, 50 N. J. Eq. 547 (Ch. 1892); Swetland v. Swetland, 100 N. J. Eq. 196 (Ch. 1926); affirmed, 102 N. J. Eq. 294 (E. & A. 1927); Kutschinski v. Sheffer, 109 N. J. Eq. 659 (E. & A. 1931); March v. Norristown Penn Trust Co., 123 N. J. Eq. 282 (E. & A. 1937); Herbert v. Central Hanover Bank & Trust Co., 131 N. J. Eq. 330 (Ch. 1942), affirmed 132 N. J. Eq. 445 (E. & A. 1942); Barrett v. Barrett, 134 N. J. Eq. 138 (Ch. 1943); Duane v. Stevens, 137 N. J. Eq. 329 (Ch. 1945).

To adopt defendants’ contention and include in the division of the residuary estate the grandchild born subsequent to the death of the testator would necessitate a rephrasing of the will, a rewriting of the will, a substitution of the feminine pronoun for the masculine; thus, instead of “to be divided among and paid over to such grandchildren of mine as shall be living at the time of my death”, “living at the time of her death.” Had the testator intended to so divide his estate, he could have done so very simply. He did not direct distribution among all his grandchildren, but restricted it to such grandchildren as shall be “living at the time of my death.”

One may reasonably infer that the confinement to grandchildren indicated and the exclusion of afterborn grandchildren is the result of an oversight. It is safe to conclude that had the testator or his advisors thought of, or considered, or foreseen, that which occurred, the birth of a grandchild after testator’s death and before the death of his widow, that he would probably have included him; but a court can not add beneficiaries, it cannot correct oversights or errors of a testator, nor make distribution which the testator might have directed but for such oversight. This is beyond judicial power. Beneficiaries may themselves voluntarily make such adjustments which a testator might have made, but a court may not direct or compel such action.

I am constrained to conclude that according to the will, the division of the residuary estate is limited to the grandchildren living at the time of testator’s death.

Having reached this conclusion and all the grandchildren entitled to share in the residuary estate being alive, the consideration of the question whether the provision violates the rule against perpetuities discussed by the parties in their briefs, I consider moot. However, by way of dictum, I think the provision under the circumstances here involved does not 'violate the rule against perpetuities. Dusenberry v. Johnson, 59 N. J. Eq. 336 (Ch. 1900); Trippe v. National Newark, &c., Banking Co., 98 N. J. Eq. 462 (Ch. 1925), affirmed 100 N. J. Eq. 356 (E. & A. 1926). Restatement, Property, sec. 258-259.


text:
    FRANK MANCINI, PLAINTIFF, v. FLORA DE LILLIS, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 1948.

      Messrs. Sher, Malech & Sher, for whom appeared Mr. Morris Malech, for plaintiff.

      Messrs. Chandless, Weller & Kramer, for who appeared Mr. Ralph W. Chandless, for defendants.
   Donges, J. S. C.

Plaintiff is the owner of a six-acre produce farm in the Borough of Carlstadt, Bergen County, New Jersey; defendant Flora DeLillis owns a similar farm in the immediate neighborhood, and operates the same with the. assistance of her two son's (who are also- defendants). The terrain in this vicinity is low, and a series of ditches serves to drain off excess water from rains and melting snows. Complaint is made by plaintiff that the main ditch serving his land and that of defendants has been blocked off by the defendants at a point where the ditch passes through the DeLillis property, with the result that plaintiff’s land is now unusable as a farm for want of proper drainage..

A transcript of the testimony taken at final hearing on February 6, 1946, has been furnished me. I feel constrained to observe that much of the testimony respecting the locar tion of ditches, elevations, and the like, is confused; some is unintelligible. However, the testimony of credible and disinterested witnesses makes clear all that is necessary for a decision of this case.

It would appear that this general area lays within, and South of, an angle made by the intersection of Washington Avenue and Mousetown Road. For many years — at least fifty — a main ditch, running in a general Northerly direction, has existed which carried water from the property which plaintiff now owns, through the property of his adjoining neighbor (Frietella,), thence through, defendants’ property, and-thence to a -culvert under Washington Avenue; about 1930 a secondary ditch was dug on defendants’ farm, running from the main ditch to a point in' Mousetown Road approximately 250 feet from the culvert under Washington Avenue. In the Spring of 1945, immediately before the filing of this suit, defendant Ludwig DeLillis blocked the main ditch at a point on his mother’s property where his secondary ditch connected with it, endeavoring to lead the flow of water to an outlet at the Mousetown Road. The elevation of the outlet at the Mousetown Road, is however, about a foot and a half greater than the elevation of the Washington Avenue culvert. In consequence, the water level in the ditch draining plaintiff’s farm is raised to a point that impairs proper drainage and renders farming unprofitable, if not impossible.

By way of defense, it is urged that as a matter of law, the court will not protect a litigant whose claim relates solely to the flow of surface water. The authorities are to the contrary. Nearly a century ago, in Earl v. DeHart, 12 N. J. Eq. 280, our Court of Errors and Appeals unanimously affirmed the Chancellor who said (at page 283):

“A water-course is defined to be ‘a channel or canal for the conveyance of water, particularly in draining lands.’ It may be natural, as when it is made by the natural flow of the water, caused by the general superfices of the surrounding land from which the water is collected into one channel, or it may be artificial, as in case of a ditch, or other artificial means, used to divert the water from its natural channel, or to carry it from low lands, from which it will not flow, in consequence of the natural formation of the surface of the ■surrounding land.”

At page 285 the Chancellor continues:

“This water having run in the same course for more than twenty years, and the complainant, and those under whom she holds, having enjoyed it as a right during that period in its present channel, no one has a right to dam up the channel or to divert the course of the water, to the injury of the complainant’s land. It makes no difference whether it is a natural water-course or an artificial ditch. If it is a mere ditch, and the complainant’s land has enjoyed the use of it for more than twenty years, and as an adverse right, then it is an easement which the owner of the complainant’s land has in that of the defendants ; it is a privilege without profit, and is as much the subject of protection as a natural water-course.”

That case has been frequently cited as authority by the courts of this State, and by the courts of our sister states, and so far as has been called to my attention, the principles there enunciated retain their full vigour to this day.

While it is true, as defendant argues, that the Bill of Complaint does not specifically state whether the asserted right arises in plaintiff by virtue of a deed or by prescription (which, of course, presupposes a grant), nevertheless I deem the allegations of the Bill adequate in the present instance. Apparently the want of a more specific statement of plaintiff’s claim did not work any surprise or disadvantage to defendants in the presentation of their defense. Besides, defendants did not press their objection' until the parties and their witnesses were actually before the court for the final hearing on the merits. The motion for dismissal is disallowed.

I am satisfied that plaintiff is entitled to an injunction. Ludwig DeLillis admits having dug the diversionary ditch, and he admits having placed the block which diverts the flow of water in the main ditch and prevents it from reaching the Washington Avenue culvert and sends it toward the Mousetown Road outlet. The block must be removed. It is not available to defendants to say that at small expense or trouble the plaintiff, or the County of Bergen (which maintains culverts, outlets, and ditches adjacent to County roads) can effect a more efficient drainage of plaintiff’s farm. Such a defense admits of injury. Earl v. DeHart, supra.

There will be a judgment for plaintiff, with costs.


author: Jacobs, J. S. C.

text:
    WILLIAM HINCHLIFFE, EXECUTOR OF THE LAST WILL AND TESTAMENT OF ELIZABETH COLLETTA INCHCLIFFE, PLAINTIFF, v. MARGARET KASTNER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 25, 1948.

      Mr. William Hinchliffe (Mr. Hugh C. Spernow, of counsel), for the plaintiff.

      Mr. William F. Nies, for the defendant.
   Jacobs, J. S. C.

Plaintiff, as Executor of the estate of Elizabeth Colletta Inchcliffe deceased, seeks to recover possession of a savings bank book from defendant, Mrs. Margaret Kastner, who, in her counterclaim, seeks a declaration that the book is her property by way of gift causa mortis from the decedent.

The decedent entered St. Joseph’s Hospital on September 15, 1944, and remained there until her death on January 4, 1945. The death certificate states that she died of cancer of the left breast, cardiac collapse and bilateral bronchial pneumonia. Shortly after the decedent’s admission to the hospital the plaintiff, who had been her attorney for many years and had, in 1938, prepared her will devising and bequeathing her estate for charitable purposes, visited her. At that time she asked him for her savings bank book in the Paterson Savings Institution so that she would be enabled to draw funds for the payment of her expenses. Plaintiff delivered the book to her and made arrangements with the bank to honor her withdrawal slips. Thereafter plaintiff visited her on several occasions, including a visit about the middle of November, followed by a final visit on the date of her death. On none of these visits did plaintiff discuss the bank book with her.

The decedent had no children and her closest relative was her sister, the mother of the defendant. • Several nieces and nephews, in addition to the defendant, survived the decedent. The defendant testified that although her mother was not on good terms with the decedent, she had always been friendly with her Aunt, was notified when she went to the hospital, and thereafter visited her regularly at the hospital about three times a week. On occasions she brought small gifts and during the 'Christmas season she brought her a bed jacket and some fruit. On December 28, 1944, she visited her Aunt in the company of her friend Mrs. Edith Carter. Defendant testified that her Aunt reached under her pillow and brought out an envelope which she handed to her saying that it contained her money, that she was going to die, and that she wanted her niece to have it. On her way home she opened the envelope in Mrs. Carter’s presence and found that it contained the savings bank book, together with a slip of paper which bore the writing, “Mrs. E. C. Inchcliffe To my nees Mary Kastner”. Mrs. Carter testified that she had, on several occasions, accompanied the defendant on her visits to the hospital and fully corroborated her testimony with respect to the donation of the envelope, and their subsequent ascertainment that it contained the bank book and slip of paper. The defendant also testified that when she visited her Aunt on December 30th, her Aunt repeated that she wanted her to keep what she had given to her.

Although plaintiff’s bill of complaint alleged, in i'ts first count, that the decedent never placed the funds represented by the savings book beyond her control and, in its second count, that the bank book was removed “surreptitiously and fraudulently”, no direct evidence was introduced to disprove the testimony of the defendant, supported by Mrs. Carter, that the decedent had, with knowledge of impending death, made a gift to her of the bank book. Plaintiff did testify that he spoke with the defendant on the morning of the day of decedent’s death and that among other matters she said, “I know where her bank book and bills and other papers are, do you want me to get them?” The defendant acknowledged the reference to other papers but denied that she had mentioned the bank book to the plaintiff. The defendant’s conversation with the plaintiff occurred on the morning after the defendant had spent the entire night at the decedent’s bedside and, while it may be deemed to raise troublesome inferences, it is not sufficient to discredit the direct and otherwise uncontradicted testimony of the defendant and Mrs. Carter. In this connection it is worthy of mention that during the defendant’s cross-examination, -plaintiff’s counsel unsuccessfully sought to elicit an admission that the defendant took the savings book from decedent’s pocketbook in the presence of decedent’s nurse; subsequently the defendant closed her case and plaintiff’s counsel affirmatively stated before Vice Chancellor Lewis, who heard the testimony in the matter, that “we will probably have to arrange to take” the deposition of the decedent’s nurse. It may not be without significance that plaintiff’s case was permitted to remain closed without incorporating the suggested testimony in the record. Cf. 2 Wigmore, Evidence (3rd ed. 1940) § 285; DeinBacher, Inc., v. United States Fidelity & Guaranty Co., 115 N. J. Eq. 205 (E. & A. 1934).

From all of the evidence in the record it convincingly appears that the decedent, in expectation of death, then imminent, made a gift of her savings bank book to the defendant, which gift was never revoked and was followed by her death as anticipated. Under the law of our state, the gift constituted a valid donatio causa mortis which entitles the defendant to the funds represented by the savings bank book. See Weiss v. Fenwick, 111 N. J. Eq. 385 (E. & A. 1932); Borthwick v. Skurzynski, 139 N. J. Eq. 520 (Ch. 1947) aff’d 141 N. J. Eq. 363 (E. & A. 1948).

Judgment will be entered against the plaintiff on his complaint and in favor of the defendant on her counterclaim.


text:
    LUELLA STUMPF RICKER AND CHARLES CLIFFORD RICKER, HER HUSBAND, PLAINTIFFS, v. ALFRED T. POLTOCK, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 9, 1948.

      Mr. Hubert J. Franklin, for the plaintiffs.

      Mr. Leslie L. Vanderbilt, for the defendant.
   Donges, J. S. C.

Plaintiff, Luella Stumpf Ricker, claims to be the equitable owner of a one-half interest in real estate, and seeks a partition and an accounting. Defendant stands on a record legal title in himself, and denies plaintiff’s claim to any relief.

Anna C. Stumpf died, testate, on January 7, 1939, seized of title in fee to premises No. 1 Ayer Place, Rutherford, New Jersey. By her will she devised the property to her two daughters, Luella Stumpf Ricker (a plaintiff herein), and Wilhelmina Poltoek, subject to the latter’s “right to live there with her husband under the same conditions as heretofore, as long as she so desires; provided, however, that she pay any deficiency, which may occur in carrying charges, while living in said premises”. Wilhelmina died on January 27, 1942, survived by her husband Alfred T. Poltock (the defendant herein). The Poltocks had resided in the property with Mrs. Stumpf for many years, and following the latter’s death they continued to reside therein until Mrs. Poltock’s death. Since his wife’s death, Mr. Poltock has continued to occupy the property alone.

In the year 1939, a few months after the mother’s death, the two daughters and their spouses made a conveyance of the above real estate to the defendant. This was done to enable the defendant to make a mortgage on the land, the proceeds of which were to be used to pay the balance of the then existing mortgage, the surplus to be divided between the two sisters,— the equitable owners. The mortgage was accordingly made (for $1980); approximately $300 remained for division between the two sisters. Plaintiff, Luella Stumpf Ricker, received $150.00; defendant, Poltock, received his wife’s share, and with it paid certain expenses in connection with Mrs. Stumpf’s estate which he had voluntarily assumed.

Not long after the death of Mrs. Poltock, her sister (Mrs. Ricker) disclosed to Mr. Poltock her intention to make a will. On direct examination, he testified to that conversation as follows: “I was called to the house, and Mrs. Ricker said, T am going to Johnny Stothers to make a will’. And I said, ‘what have you got to make a will about?’ And she said, ‘half the house.’ And I said, ‘Half the house? It is mine, you signed the deed over to me, it is my house, I am not going to sign anything for you to be able to make a will’.” Just ahead of this testimony the defendant stated: “ * * * there was needed to take out the mortgage and in order to get that mortgage it was put over in my hands, a deed to me, in order to get that mortgage and get the money, so the best we could get from the mortgage was in the neighborhood of three hundred dollars. After we got that money my wife said to me, here is one hundred fifty dollars to finish off paying off the debts, and I paid off the debts and there was no more debts for the mother.” On cross examination, the witness testified as follows: “Q. The property was deeded to you ‘in order to get a mortgage’, is that what you mean, is that correct? A. That is right. Q. You didn’t give any consideration in dollars to Mrs. Ricker for her interest in the property? A. No consideration? The consideration I gave is what I had done in the home. Q. Did you give any consideration in dollars at the time? A. No dollars, no.”

The evidence clearly requires a finding that defendant took a naked legal title to the property in question as a trustee only. Mrs. Ricker is clearly the equitable owner of a half interest in the real estate, subject, of course, to the inchoate right of curtesy of her husband, — her co-plaintiff. Moreover, defendant must render an account covering the period beginning with the death of his wife. Mrs. Stumpf’s will gave a right of occupancy to defendant and his wife, conditioned upon their paying all carrying charges and expenses. Paragraph 9 of the bill of complaint, admitted by the answer, quotes the fourth paragraph of Mrs. Stumpf’s will to this effect. Defendant will be charged for use and occupation, therefore, since January 27, 1942, and will be given credit for all payments since that date on the mortgage, and for taxes, repairs &c. If counsel cannot agree, a reference will be necessary to have the account stated.

The complaint contains no allegations respecting Mrs. Poltock’s heirs. Both sides may have assumed that in the event Mr. Poltock were held to be a trustee of the legal title, he would succeed to his deceased wife’s equitable interest. Indeed, this may be so. But it must be alleged and proved. Otherwise the suit may be defective for want of parties. If additional parties are not necessary, the proper amendments and a stipulation can be filed when the judgment is presented for signature.

Obviously the property is not capable of a physical division. If all necessary parties are already in court, the real estate will be ordered sold. After payment of the mortgage (and any other liens), plaintiff Luella Stumpf Ricker will be entitled to one-half of the proceeds of sale, upon her husband’s consenting to release his curtesy; defendant will be entitled to the remaining one-half. If the accounting discloses that either Mr. Poltock or Mrs. Ricker is indebted to the other, the amount of the debt as so determined will be taken from the debtor’s share of the proceeds of sale.

Plaintiffs are entitled to a judgment carrying costs and a counsel fee.


author: Eastwood, J. S. C.

text:
    STATE OF NEW JERSEY, EX REL., BOARD OF HEALTH OF THE TOWNSHIP OF RIVER VALE, PLAINTIFF, v. JAMES ANNETT, DOING BUSINESS AS POULTEK FERTILIZER COMPANY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 23, 1948.

      Mr. Jos. Frederick Bratt (Mr. George F. Losche, of counsel), for plaintiff.

      Mr. Samuel J. Davidson, for defendant.
   Eastwood, J. S. C.

The bill of complaint alleges that on April 25, 1942, and continuously thereafter, the defendant, James Annett, doing business as Poultek Fertilizer Company, was the owner and operator of a factory building in the Township of River Vale, adjoining the public road known as Sand Road. During the period in question the defendant carried on in said building and premises the business of storing chicken manure and fertilizer in large quantities, and of manufacturing fertilizer by’ a process of dehydrating said chicken manure. The process of converting the raw manure into fertilizer was accomplished by feeding the raw manure into a rotary drier fired by oil heat whereby the water content of the manure was driven off and the dry product then bagged for storage and distribution. The vapors, fumes and gases emitted from the drier were carried off into the surrounding atmosphere by means of a smoke stack or pipe 30 or 40 feet in height. Defendant is engaged in his business six days a week. After commencing operations in a small way in 1942, defendant’s business progressed to such an extent that by 1945 he was producing and selling the 'fertilizer in car load lots for distribution generally throughout the United States. Shortly after defendant commenced the manufacture of fertilizer in 1942, numerous complaints were received from property owners and residents in the neighborhood that defendant’s operations were causing a pollution of the air with foul and noxious odors, gases and vapors, allegedly injurious to their health. The municipal authorities and health officer intervened for the purpose- of attempting to find ways and means of remedying the situation, but without avail. It does appear that the defendant ceased his previous practice of storing the raw chicken manure in the open and that he constructed a large covered pit for this purpose. Also, that the raw manure was treated with lime in an endeavor to suppress and alleviate the foul odors complained of. Whether his efforts were successful in removing the objectionable conditions is a question upon which the witnesses disagree. Suffice it to say, the condition, or nuisance, as plaintiff claims exists, resulted in an action instituted by the board of health against the defendant under R. S. 26:3B-7, P. L. 1945, ch. 192, p. 654, for the recovery of penalties for the violation thereof. In those proceedings the defendant was convicted of three violations of the statute, which convictions were affirmed by the former Supreme Court and the Court of Errors and Appeals on certiorari. See Annett v. Salsberg, 135 N. J. L. 122, 50 A. 2d 841 (Sup. Ct. 1947) affirmed 136 N. J. L. 194, 54 A. 2d 720 (E. & A. 1947). The bill of complaint was filed herein under the authority of R. S. 26:3-56. A motion to dismiss the bill was denied by Vice-Chancellor Lewis and, on appeal to the Court of Errors and Appeals, that court dismissed the appeal on the ground that it was prematurely taken, reserving to the defendant the right to assert the grounds of his application on appeal after final hearing, in the event of an adverse judgment against him.

R. S. 26:3 — 56 provides that the local board of health, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may file a bill in the court of chancery, in the name of the state, on relation of the board, for an injunction to prohibit the continuance of such nuisance. The powers of the former Court of Chancery are now vested in the Superior Court.

I have read the voluminous transcript and considered the testimony of the witnesses produced on behalf of the parties. The witnesses for the plaintiff testified to their personal experiences with reference to the alleged nuisance. Their testimony was straightforward and convincing. In addition to these witnesses residing in the vicinity of defendant’s plant, the Township Engineer, Chairman of the Township Committee, the Westwood Borough Health Officer, a representative of the State Department of Health, other officials and a practicing physician from the neighborhood involved also testified. From their testimony the following facts emerge: vapors could be seen arising from defendant’s plant; on certain days heavy, oppressive, pungent odors were clearly discernible, the odors were very obnoxious, causing headaches and in some instances nausea; the odors were particularly oppressive when the wind was in the right direction and the day was warm, sultry and humid; that the disagreeable odors were noticeable as far as 1000 to 2000 feet away from defendant’s plant; that the inhalation of the odors often caused a loss of appetite and a feeling of a desire to vomit; that some of the witnesses had to keep their windows and doors closed day and night and could not remain outdoors; that clothes freshly washed and hung out to dry became saturated with the odors and the smell could not be removed; •that the sickening odors made certain of the witnesses sick at. their stomaches and upset; that the windows of the public school had to be closed because of the odor; and that by reason of defendant’s operations a condition was created that was detrimental to the public health and one that constituted a public nuisance causing ill health. In opposition thereto the defendant testified that the vapors and odors complained of were not noticeable to him and did not affect either him or his employees adversely. He further -testified that in response to the complaints received he had endeavored to remove the source of the complaints by storing the raw chicken droppings in a covered pit within his plant and also sprinkled the manure with lime as advised by the health department. Some attempt was made to attribute the cause of the odors to the maintenance of pigs, cows, goats, chickens, other live stock, and garbage that defendant claimed were existent in the neighborhood. The testimony in this respect was not at all convincing. Firman E. Bear, a Professor of Agricultural Chemistry and Research Specialist in Soils at Rutgers University, and Wabun C. Krueger, a Professor at Rutgers University and an extension Agricultural Engineer, were produced by the defendant and their depositions offered in evidence. These experts testified principally on the topic of poultry manure, its preservation, deodorization and disinfection. They testified that the most effective deodorant for practical use with reference to chicken manure was hydrated lime. These witnesses visited the defendant’s plant on April 16, 1946, observed the conditions prevailing there and observed that hydrated lime was being used by the defendant. Whether or not the use of the lime had any appreciable effect upon the disagreeable and obnoxious odors does not conclusively appear. Nor were they able to say whether defendant used lime as a regular practice.

My review of the testimony leads me to the inescapable conclusion that the plaintiff is entitled to injunctive relief from the nuisance complained of. The evidence is overwhelming that defendant’s activities were the direct cause of a situation constituting a hazard to the public health and welfare of the community. The test is not whether the condition created by the defendant will inevitably result in disease, but rather whether -the condition constitutes a hazard, danger or peril to the public health from its presence. The statute under which the bill of complaint was filed does not require proof that the threatened mischief is absolutely destructive of health, and that such will be the inevitable consequence of the continuing maintenance thereof. The statute has no such narrow limits. The legislative intent appears to be quite clear, when it used the significant phrase including the word “hazard”. As stated by Vice-Chancellor Bird in State v. Neidt, 19 A. 318 (Ch. 1890):

“It seems to me that the intention was to submit to the board of health, and to the court of chancery, the power of determining in every such case whether or not every such nuisance may, in any reasonable event, tend to the inviting, generating, fostering, or promoting of disease. This must be so, since the question is not whether there is a nuisance or not; for the whole argument is predicated upon the fact that a nuisance exists. Therefore the whole inquiry is, is there any hazard, danger, or peril to the public health from its presence?”

It was not incumbent upon the plaintiff to establish by the proofs that persons who had been affected by the maintenance of the nuisance had become actually afflicted with a disease as a result thereof. If such proofs were required by this statute, its effectiveness would depend upon proof of the existence of actual injury instead of mere hazard. The proofs here clearly establish that the nuisance created and maintained by defendant was productive of a hazard to the public health. Consequently, the mischief ■ sought to be controlled by the statute has been proven here, justifying the injunctive remedy sought by plaintiff. State ex rel. Board of Health of Irvington v. Schmidt, 83 N. J. Eq. 35, 90 A. 239 (Ch. 1914); Lyndhurst v. United Cork Co., 116 N. J. Eq. 4, 172 A. 347 (Ch. 1934).

There is no merit in the defendant’s contention that the witnesses who testified on behalf of the plaintiff were affected by reason of being sensitive, abnormal or peculiarly susceptible to the situation under consideration. See Board of Health v. Lederer, 52 N. J. Eq. 675, 29 A. 444 (Ch. 1894), opinion by Vice-Chancellor Bird:

“But this condition of mind or body must be established by clear proof. It cannot possibly have reference to that large class in every community that are less robust, or are more feeble in body, or less capable of resisting deleterious influences from without, than many, or it may be a majority, of their neighbors. All citizéns are presumed to enjoy a normal condition of mind and body, until the contrary is clearly shown.”

There was nothing in the testimony to indicate that plaintiff’s witnesses were other than normal persons, in possession of all the usual human faculties. There is no evidence that they possessed any peculiar idiosyncrasies or abnormalities, nor that they were pre-disposed to sickness or had an enfeebled condition of body. The language of Vice-Chancellor Bird in Board of Health v. Lederer is eminently applicable to the factual situation at bar. The following statements of Vice-Chancellor Bird in State v. Neidt are applicable to the existence of a hazard to public health under the conditions prevailing here:

“Independently of the judgment of these physicians, I could not very well help concluding that the odors complained of were and are hazardous to the public health. My mind cannot be released from the conviction that when such smells not only compel citizens to retire from their porches and close their doors and windows, both by day and night, and thereby be deprived of a constant supply of fresh, wholesome air, but also cause nausea and sickness of the stomach, and produce retching and vomiting, and oblige them to forego their meals, that we have then presented very strong proof of hazard or peril or danger to the health of those so affected. But while the testimony of the physicians called by the defendants would, so far as their direct examination extends, raise the impression that such odors are simply unpleasant, and that there is no risk whatsoever to health; yet a careful study of the cross-examination clearly shows that their views coincide with my own, with the exception perhaps of that of Dr. Barwis, whose judgment is that a person may vomit two meals a day and be assured of good health, providing he can retain one.”

See also Rowland v. N. Y. Stable Manure Co., 88 N. J. Eq. 168, 101 A. 521 (Ch. 1917), opinion by Vice-Chancellor Backes.

It is my conclusion that the defendant, in his operation of the fertilizer plant, is clearly guilty of maintaining a nuisance hazardous to the public health and it, therefore, becomes the duty of this court to grant an injunction to prohibit its continuance.

I have considered all of the other grounds advanced by the defendant in support of his contentions and find them to be without merit.

Plaintiff is entitled to injunctive relief in accordance with its bill of complaint and it will be so ordered.


author: Haneman, J. S. C.

text:
    WILLIAM H. HARKER, ET AL., PLAINTIFFS v. JAMES G. McKISSOCK, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 9, 1948.

      Mr. John L. Morrissey (Mr. M. H. Goldstein, of the Philadelphia Bar, of counsel), for plaintiffs.

      Messrs. Boyle, Archer & Greiner (by Mr. F. Morse Archer, Jr.), for defendants James G. McKissock, et als.

      Messrs. Curry & Purnell (by Mr. George Purnell), for defendants Camden National Bank & Trust Co., et als.

      Mr. George D. Rothermel, for defendant New York Shipbuilding Corporation.

      Messrs. Pruitt, Hale, Desvernine & Coursen (by Mr. Cormeny, of the New York Bar), for defendant New York Shipbuilding Corporation.
   Haneman, J. S. C.

This is an action filed by the individual plaintiffs as members of Industrial Union of Marine and Shipbuilding Workers of America, Local #1, hereafter referred to as the “Local,” for and on their own behalf and allegedly on behalf of all other members of said union. The matter is as well entitled in the name of Industrial Union of Marine and Shipbuilding Workers of America, Local #1, and unincorporated association, as plaintiffs, and seeks to enjoin the individually named defendants, who were officers and trustees of said Local on September 28, 1948, from representing themselves as members or officers of said union and from exercising any of the powers as said alleged officers. Plaintiffs seek also to restrain the individual defendants from acting as officers or stockholders of the Shipbuilders’ Educational Society and the Lester Investment Company, both being corporations admittedly* holding title to real estate dr personalty in trust for the said Local, and to restrain the New York Shipbuilding Corporation and the other named financial institutions from paying over to the individually named defendants who claim to be the officers and trustees of the said Local, and the officers of the Shipbuilders’ Educational Society and the Lester Investment Company any funds in their possession.

Briefly stated, (the object of the litigation is an attempted ascertainment of whether the plaintiffs or the defendants and the members of the Local whom they are alleged to represent are properly to be considered the Local.

On the original application the court granted a temporary restraining order and an order to show cause why an interlocutory injunction should not issue. This is the return day of the order to show cause whether the interlocutory injunction should so issue.

For the purpose of convenience, the Industrial Union of Marine and Shipbuilding Workers of America will be designated as the National.

From the affidavits, the following set of facts were developed: In October 1933 the Local, an unincorporated association, was organized to represent the workers in the yard of the New York Shipbuilding Corporation in Camden, New Jersey. Thereafter, and allegedly through the efforts of said Local, the National was organized in September 1934. On January 14, 1934 the Local .adopted its original by-laws, which were subsequently amended. On September 30, 1934 the National adopted by-laws, which were as well subsequently amended. The Local became affiliated with the National subsequent to its organization. For some years the relationship seemed to have been amicable but in recent years a portion of the membership of the Local became dissatisfied with the conduct of the National in two particular and especial respects: (1) The constitution of the National provided, as one of its cardinal principles, that it opposed craft unionship and was in favor of “one industry, one union,” and that its jurisdiction should extend to “all workers employed in ship building, ship repairing, marine maintenance industry and industries producing marine equipment and allied enterprises.” It as well provided that after September 26, 1942 no employee of any other industry should be admitted to membership unless the application were approved by the general executive board of the National. The dissentient members of the Local contend that these basic principles were flagrantly violated by admitting to membership in the National, organizations of turnkeys in federal penitentiaries, attendants at mental hospitals, social service workers in Y. W. C. A.’s, gas station attendants, fertilizer workers, smelting workers, watchmakers, workers in plumbing supplies manufacturing, and secretaries and clerks in government offices. (2) As a result of the admission to membership of groups not connected with the shipbuilding, etc., industry, the National vigorously opposed legislation then pending in Congress to increase government subsidies for shipbuilding, contrary to the interest of the Local.

The dissatisfaction culminated in a meeting of the Local, held on July 30, 1948, as the result of the president having received petitions signed by 1029 members of a total membership of 3200 members. This meeting was called to discuss and act upon a proposal to disaffiliate the Local from the National. At the meeting on July 30, 1948, at which at least 2000 members were present, after what was patently a heated and acrimonious debate, a motion was made, seconded and carried without opposition referring the entire question of such disaffiliation to the Official Board of the Local.' Thereafter, and until September 22, 1948 the Official Board made reports at each regular meeting to the general membership.

In accordance with the action taken at a regular membership meeting held on September 16, 1948, a special meeting of the membership was called for September 28, 1948. The notice of said meeting, signed “Official Board, I. U. M. S. W. A.-Local No. 1,” reads as follows:

“This meeting is called for the purpose of acting upon the report and recommendations of the Local 1 Budget Committee, which was made at the last General Membership Meeting. A proposed budget for the six month period ending February 28, 1949 has been submitted as well as specific recommendations for the Local’s financial operation during that period. It is essential that every member be present at this important meeting.”

Thereafter, notice of this meeting was given in accordance with article 3, section 12 of the by-laws of the Local.

On September 24, 1948 the Official Board decided that a further report concerning these matters should be made to the general membership meeting called for September 28, 1948. Consistent therewith, the following notices were posted and served in accordance with the provisions of said by-laws:

“I. U. M. S. W. A.-Local No. 1
SPECIAL NOTICE
The following items of business are to be included on the agenda of the Special General Membership Meeting of. Tuesday, September 28th:
1. Discussion and action upon a complete report and recommendations of the Negotiating Committee regarding a proposal for Sickness Insurance arrangement for Local 1 members.
2. Discussion and action upon a report by tbe- Official Board regarding current problems of the Local.
NOTE: The above items are in addition to the item concerning
the Budget Committee report to the membership.
ALL MEMBERS SHOULD BE PRESENT.
Fraternally,
OFFICIAL BOARD
I. U. M. S. W. A.-Local No. 1.”

At the meeting of September 28, 1948, at which “substantially more than 700 members attended,” the following resolution was adopted:

“WHEREAS, the National Organization of the Industrial Union of Marine and Shipbuilding Workers of America has violated the cardinal principles of its constitution, particularly the principle of ‘One Industry-One Union,’ and has in other ways violated its constitution which is its contract with this Local:
NOW, THEREFORE BE IT RESOLVED, that this Local does hereby terminate its affiliations with the said National Organization of the Industrial Union of Marine and Shipbuilding Workers of America and that such disaffiliation be effective as of this date, September 28,1948, and;
BE IT FURTHER RESOLVED, that the Officers of this Local constituting the Official Board of this Local be and they hereby are authorized and directed to take such actions and do all things necessary or appropriate to render immediately effective the aforesaid disaffiliation, and to continue the operation of this Local for the benefit of its members in accordance with its By-Laws as the same are being forthwith amended to conform to the disaffiliated status of this Local under this resolution.”

On vote by show of hands the motion was adopted by all of the membership then present and voting, with the exception of less than 25 members, who did not vote, and eight members who voted in the negative. The plaintiffs, William H. Harker, Howard G. Wintling and Harry J. Dunn, were present at this meeting.

Plaintiffs now contend that the action taken by the membership attending was illegal in that (1) under the common law contractual rights of the members of the Local, as established by the by-laws of the Local and the constitution of the National, without the affirmative consent of the National and over the opposition of any one member of the Local, the balance of the members of the Local were powerless to disaffiliate. Their action in the attempted disassociation succeeded' only in severing their connection with the Local. As a result, those members who continue to recognize the affiliation with the National continue to be the Local and succeed to all the rights and property of the Local, and (2) that in any event the action taken was not in accordance and in compliance with the terms of the by-laws of the Local. It is to be noted that the National is not a party to these proceedings and seeks no relief in this litigation.

The primary question here is, who is entitled to the assets of the Local? It is a question purely of property rights.

The only theory upon which plaintiffs can succeed under their first advanced theory is that a disaffiliation, as here, is violative of the contractual rights of the members of the Local, which arise as a result of the by-laws of. the Local and the constitution of the National.

The by-laws of an unincorporated association must admittedly be regarded as a contract between the members thereof, upon which each member can rely. Height v. Democratic Women’s Luncheon, &c., Inc., 131 N. J. Eq. 450, 25 Atl. (2d) 899.

Plaintiffs refer to a number of cases to sustain their contention that the arrangement among the members of the Local contemplated an irrevocable contract to continue affiliation with the National. A cursory examination of the cited authorities would lead to a conclusion that there is some confusion as to the power or authority of any portion of an unincorporated local association or society to successfully sever its connection with a national organization and thereafter to continue to be recognized as the original local association or society, with title to the assets of such local vested in them. A more thorough examination makes apparent the distinctions upon which the determinations were predicated.

There are generally three categories- of cases where the questions now propounded have been considered, and where the results have been different. These are instances where (1) the association was a 'religious society, (2) the association .was a dependent local association which, with other locals, belonged to a national organization, generally a so-called “mutual benefit” association, or (3) the association was an independent local association which, with other locals, belonged to a national association.

I

The cases involving religious societies are predicated either upon ecclesiastical law or the statutes there involved. Very clearly in those cases, the mother church was considered supreme, and the various individual local churches dependent and not independent organizations. The courts have held that although there is no doubt about the right of individual members to secede, no member or group of members, no matter how great the majority may be, however, has the right to secede from the mother church and take the property of the local church with it to a new affiliation, so long as there remains a faction of the local church which abides by the doctrines, principles and rules of the mother church government which the local body originally professed to recognize. The local churches were considered inferior to the general organization or denomination and deemed to hold the title to property in trust for the general organization or denomination.

In Schilstra v. Van Den Heuvel, 82 N. J. Eq. 155, 90 Atl. 1056, the court said, at page 166:

“The rules of law relating to freedom of action by independent churches and congregations are dilferent from those rules which apply to congregations which are affiliated with and are subordinate to higher judicatories. Independent churches may do what they please with their property, provided local action is taken to that end, but when a religious society becomes affiliated with other religious societies and they unite to construct and maintain for their mutual advantage higher judicatories to which they subject themselves, then the individual society or worshiping unit holds its property and temporalities under an obligation to continue the affiliation until it can be broken by mutual consent; and if secession is attempted by a faction, however large or however small, such faction will not be allowed to carry the church property with it, certainly not so long as there is a loyal body which is recognized by the superior judicatory.”

See also Karoly v. Hungarian Reformed Church, 83 N. J. Eq. 514, 91 Atl. 808; Grupe v. Rudisill, 101 N. J. Eq. 145, 136 Atl. 911; Kelly v. McIntire, 123 N. J. Eq. 351, 197 Atl. 736; True Reformed Dutch Church v. Iserman, 64 N. J. Law 506, 45 Atl. 771.

It is plain that these cases are predicated, in the absence of statute, upon the theory that the local associations or societies have subjected themselves to “higher j'udicatories,” in effect, that they are subservient to the general association of individual churches and have no right of independent action, resulting in a secession. Such is not the situation in the case sub judice. Here the Local was in existence prior to the organization of the National, which National came into being as a result of the efforts of the Local. Nowhere in the constitution of the National or the by-laws of the Local does there appear any relinquishment of the right of the Local to govern itself. The various locals comprising the National are here independent, forming a confederation which is not a higher judicatory.

In Shafran v. St. Nicholas, &c., N. J., 117 N. J. Eq. 54, 175 Atl. 139, the Court of Errors and Appeals unanimously affirmed the opinion of the court below, which opinion, in part, reads as follows:

“In support of the relief which complainants seek they insist that the society is a religious society, and that a portion of a religious society may not disfranchise the rest, nor can even a majority arbitrarily withdraw from a minority and appropriate to themselves the corporate name and property of the organization, citing in support of their contention Grupe v. Rudisill, 101 N. J. Eq. 145; True Reformed Dutch Church of Paramus v. Iserman, 64 N. J. Law 506, and others. This is not a religious society and the eases cited have no application.”

Since we are not now concerned with a statutory interpretation, those cases involving particular statutes will not be analyzed.

The cases of dependent religious societies are not in point and have no application, as was stated in International Union, &c., C. I. O. v. Recherer, 142 N. J. Eq. 561; 61 Atl. (2d) 16.

II

It is conceded that where a local is a dependent member of a national, that there is no power of secession without consent of the national and, under certain circumstances, a unanimous consent of the membership of the local. In the cases involving dependent locals, it is clear that all the individual members of the respective locals forming the national have an interest in the funds and property of all of the other locals and that the property of a particular local is deemed held in trust not only for its own membership but for the other individual members of the balance of the locals as well. The funds and property are held in trust under the constitution of the superior organization. In such event, the decisions turn upon a determination that the national is composed of indivisible component parts, i. e., the locals, and that the latter are dependent for their existence upon a continuation of affiliation with the parent body. A dismemberment of one local does not cause the death of the national, but rather the death of the local. A secession of a part succeeds only in terminating the interest of the secessionists and if less than the entire number of members of the local, title to the assets of the local continue vested in the loyal members regardless of how small a percentage of the membership they may be. This situation usually occurs with so-called “mutual benefit” societies. The logic of the reasoning in such circumstances, in view of their by-laws and constitutions and their avowed purposes, is self-evident. Where the locals are independent, the right to secede exists.

The cases cited by the plaintiffs, i. e., Altmann v. Benz, 27 N. J. Eq. 331; State Council &c., v. Sharp, 38 N. J. Eq. 24; Knights of Pythias v. Germania Lodge, No. 50, 56 N. J. Eq. 63, 38 Atl. 341, are not in point because there the dissentient members attempted a dissolution of the locally chartered chapter, or the local chapters were admittedly subordinate. We are not here concerned with any attempted dissolution.

III

In considering the question of the independence of the locals, the courts have used various requisites as guides. Each case must depend upon its own particular facts and an analysis of the particular by-laws and constitutions.

A situation similar to that sub judice was presented in State Council Jr. O. U. A. M. v. National Council, Jr. O. U. A. M. 71 N. J. Eq. 433, 64 Atl. 561; affirmed, 79 N. J. Eq. 193, 82 Atl. 47, where the court said at page 436:

“The complainant admits that for many years it has held a charter granted by the defendant, and that it acted in all respects in obedience to the laws enacted by the defendant until the fall of 1899, but it denies that it is in any sense the creature of the defendant, but asserts and shows that its existence as an organization of precisely its present character predated that of the defendant, and that it (the complainant), in conjunction with a similar organization in the State of Pennsylvania and one in the State of Delaware, created the defendant, and that the defendant owes its existence to the complainant rather than the contrary, and it argues that the subordinate position which, subsequent to the creation of the defendant, the complainant chose to occupy to it was purely voluntary and contractual, and that complainant had the right, at any time, at its free will and pleasure, to dissolve the same and resume its original independent existence with all its consequences, viz., the full and complete jurisdiction which it had previously exercised over numerous local councils of the same order in the State of New Jersey.”

In State Council Jr. O. U. A. M. v. Enterprise Council, No. 6, 75 N. J. Eq. 245, 72 Atl. 19, the Court of Errors and Appeals said at page 247:

“In that opinion he contrasted the legal relation between the national, state and subordinate councils with the legal relation between the national government and the governments of the several states. The decree in the first case was affirmed upon the vice-chancellor’s opinion, and the appeal from the decree in the second case was dismissed. It is thus settled that it is the subordinate councils which have an independent existence, and that their relationship with the state and national councils is, as the vice-chancellor said, a purely voluntary one. The state council could have no greater right to coerce the subordinate council than the national council had to coerce the state council.
The fact that the national and state councils chose to call their permission to organize subordinate councils a ‘charter’ and chose to call their constitution and by-laws ‘general laws,’ does not give them the force of law. As the vice-chancellor held in the opinion approved by this court, the relationship is purely contractual, and in ascertaining the terms of that contract, recourse must be had to the so-called ‘charter’ and ‘laws,’ which embodied the terms upon which individual members became associated in those organizations.”

Parenthetically, it might be stated that the law of that case was held to apply to unincorporated associations as well as corporations. See State Council Jr. O. U. A. M. v. Hollywood Council, 75 N. J. Eq. 292, 72 Atl. 24.

In Schweitzer v. Schneider, 86 N. J. Eq. 88, 97 Atl. 159, affirmed on the opinion below, 86 N. J. Eq. 256, 98 Atl. 1086, the court said as follows, at page 92:

“In the case in hand, the United Garment Workers of America, which is not a party to these proceedings, was not the parent organization of the two local unions involved in this issue. The two local unions were formed prior to the organization of the United Garment Workers of America.”

The adhesive element for the locals which compose the national is similar to that stated in National Council Jr. O. U. A. M. v. State Council Jr. O. U. A. M., 64 N. J. Eq. 470, 53 Atl. 1082, affirmed 66 N. J. Eq. 429, 57 Atl. 1132, where the court said as follows at page 474:

“The adhesive power which holds these several bodies together is the supposed benefit, first, to the individual members by reason of their membership; then to the subordinate council by reason of its connection with the state council, and then to the state council by reason of the benefit supposed to be derived by its connection with the national council.”

It is to be noted that under the constitution of the National there is no provision made for individual members, as such, of the National. The National is not composed of individual members but is composed of affiliated locals. The sole provision for individual membership is to be found in article 4, section 2, paragraph B of the constitution of the National, where provision is made that

“In localities where there are not a sufficient number of workers employed in the enterprises and industries covered by tire jurisdiction of the Union * * * any individual worker may affiliate directly with the National Union,”

but when any employment is secured by him in a locality where a local union exists, he shall immediately transfer his membership to such local union. Legislative authority of the National is reserved to the membership in convention assembled, except that when the convention is not in session, executive and judicial powers are vested in the Executive Board. The convention consists in an assembly of the various locals represented by delegates and each local is entitled to a designated number of votes at the national convention by duly accredited delegates. The officers of the National are elected by these delegates of the various locals in convention assembled. No individual member of a local nor any member of the National disaffiliated with a local is granted lnny vote or voice in the election of officers or the conduct of the business of the National. It is plain, therefore, that the local could exist without the National but that the National, being composed of the locals, could not exist without them.

The plaintiffs argue that since there is no provision for disaffiliation or disassociation of the local, which they designate a subordinate body, such disaffiliation cannot be accomplished without the unanimous consent of all of the members thereof, and in addition, that the constitution of the National and the by-laws of the local constitute a contract and that a disaffiliation or disassociation would be a violation of the terms of such contract.

It is to be noted that although there is no express provision in either the by-laws of the local nor the constitution of the National for a voluntary disaffiliation by the local, there are provisions in the constitution of the National for the revocation of the so-called “charter” of the local by the National. That the prospect or possibility of such a voluntary disaffiliation was considered is to be found in article 4, section 22, which makes provision for the disposition of the property of the local “upon the dissolution, suspension, expulsion or termination of affiliation” with the union. Impliedly, at least, the right to disaffiliate is recognized.

Although the nature of the action in International Union, &c., C. I. O. v. Becherer, supra, was somewhat different from the action here taken, the facts are closely parallel. In that case the plaintiff advanced a similar theory to that now being considered, but attempted to attain the same result, i. e., continued forced affiliation with a National, in a different manner. The plaintiffs now contend that the reasoning of the learned Vice-Chancellor there concerning the authority of any portion of an unincorporated' local union to disaffiliate with a national union was dicta. It impresses the court that these pronouncements were not dicta but'were necessary for the conclusion at which he arrived. In any event, the soundness of his reasoning is beyond dispute. The court there said as follows:

“I come now to the essential question. Has a local union the right, by the will of its membership, to withdraw from its affiliation with an international labor organization, and if it has, what is the effect upon its funds and property? I have examined the constitution of the International and find that it conforms to an old and well recognized pattern. It provides that any, local group composed of 20 or more workers in the brewery, &c., industry ‘can affiliate with the International Union’ by applying for a local union charter and paying certain dues and assessments. It is true that under that constitution it is provided that a worker becoming a member of a local union becomes thereby also a member of the International, but the significant fact is that the International is a federation of local unions. Dues by the workmen are not paid directly or in the first instance to the International but are paid to the local union, which, in turn, remits out of these duos a per capita tax to the International. The relationship is closely analogous to that considered by the Court of Errors and Appeals in the case of State Council, &c., v. Enterprise Council No. 6, 75 N. J. Eq. 245. That case involved the relationship between a national council, a state council and subordinate councils composed of individual members. These councils constituted a beneficial order, but the individual members paid their dues to their subordinate councils. There, as here, the relationship between the individual members and their immediate organization (the subordinate council) constitutes the very life of the entire structure. The existence of the Local Union, its revenue and its functions, are not derived from or dependent upon the International. These individual unions could well continue their existence and their functions without any relationship with any national or international labor organization. Such relationship may have its decided advantages but it is not a sina qua non. On the contrary, the international union does not depend for its continued existence upon affiliation with the local unions and upon receiving from the latter dues of per capita tax, or by whatever other name that revenue be called. Each local union is a separate and distinct voluntary association which owes its creation and continued existence to the will of its own members. The property accumulated by the local union from contributions made by the individual members is a trust fund for the benefit of those members, and though the legal title to such property may be vested in the officers of the local, such ownership is of a trust character for the use of the individual members. The affiliation with the international union undoubtedly creates the liability resting on the local union to pay, while such affiliation endures, the dues or per capita tax called for in the international charter, but that gives the-international union nothing more than a claim or an account receivable. No direct property right in the local union’s assets can or does arise in favor of the international. The relationship between the international and its constituent local unions is that the local unions are the constituent units in a confederation comprising the international. That confederation is a voluntary one and any local union is free to withdraw from the alliance.”

The facts recited by the learned Vice-Chancellor in the above quotation are almost identical with the facts sub judice. His logic is as applicable here as in the matter which he had under consideration. Therefore, it is not necessary to further reiterate the facts or conclusions here. Suffice it to say that the cited portion of the opinion, both ' factually and legally, is here adopted.

The local union obtained title to the real estate and personalty which is now the subject of this litigation by the contributions of its component members. This was ip no way obtained as a result of any contribution by the National. The title, whether in the name of the local or held in trust for the benefit of the local, was for the benefit of the members of the local, an unincorporated association. The National existed and functioned only through representatives of its numerous locals and obtained its finances through a contribution made by said locals resulting from the payment of dues by the individual members of the locals to them. The affiliation with the National was not such a basic requirement as to' make it impossible to accomplish a disaffiliation. Actually, as above pointed out, the local could and did exist prior to the organization of the National and could again exist without an affiliation with the National.

The by-laws of the local do not impose any contract between the members requiring an irrevocable subservience to the National. The National is the result of a voluntary confederation of independent locals rather than the result of a parent superior “state” composed of dependent servient local “principalities.”

It is here held, therefore, that under the circumstances present in the case sub judice, as shown by the affidavits and exhibits, there is nothing in the constitution of the National or the by-laws of the local which would beyond argument or doubt prevent the membership from disaffiliation, provided that adequate regard was had for the by-laws of the local.

It is necessary to ascertain whether there was a compliance with the by-laws of the local as to attain the objective of severance. In that connection, it is to be noted that the original call of the meeting for September 28, 1948 was made in accordance with the terms of the by-laws. The plaintiffs except to the meeting on the theory that (1) it was not called in accordance with article 1, section 5, (2) the notice thereof was not given in accordance with the provisions of said section, and (3) various references to the National in the by-laws of the local prevent the action of which complaint is here made. The by-laws of the local provide in part as follows, article 1, section 5:

“Sec. 5. Special Meetings: Special meetings shall be called by the President upon a written request of one hundred (100) members in good standing, by a motion passed at a General Membership meeting, or by the Executive Board. Should the President refuse to call a special meeting upon written request of 100 members, any elected officer of the Bocal may do so. At a special meeting no money shall be expended or authorized to be spent for any purposes, other than that stated in the call of the meeting. The notice of a special meeting shall contain a statement of the purpose of the meeting and shall be posted on all Union bulletin boards and in Union offices, and similar notification shall be given to each department secretary at least forty-eight (48) hours before the time of the meeting.”

The first two of the reasons advanced are governed by Height v. Democratic Women’s Luncheon, &c., Inc., supra, where the court said:

“Few members of an association attend all meetings. They may properly assume that if any action is contemplated which is of' ah extraordinary nature and of great importance to the association, they will be notified that the matter will be brought up at the meeting. Without such notice, members who are absent from the meeting are not bound by the action of those who attend. Bagley v. Reno Oil Co. (Pa.), 50 Atl. Rep. 760; Johnson v. Tribune-Herald Co., (Ga.), 116 S. E. Rep. 810; Des Moines Life, &c., Co. v. Midland Insurance Co., 6 Fed. Rep. (2d) 228.”

It is important to ascertain whether there was a necessary compliance with the requirements for calling this meeting. The original call of the special meeting was upon the direction of a motion passed at the general membership meeting held on September 16, 1948. The meeting was properly called. The purpose of this meeting, as expressed in the first notice, was not originally the consideration of the question of disaffiliation. Thereafter, this' additional purpose was deemed necessary to be considered by the Official Board. A new notice was given advising that an additional purpose was “discussion and action upon a report by the Official Board regarding current problems of the Local.”

The special meeting set for September 28, 1948, as originally called, was authorized at a regular membership meeting, which is in accord with the by-law provisions. The sole objections to the meeting that are now urged are the inclusion of the additional purpose for consideration at this meeting after the service of the first notice setting forth a purpose, or that the resolution authorizing the special meeting expressed a limited purpose which did not include a consideration of disaffiliation. There is nothing in the affidavits filed that discloses the purpose of the special meeting authorized at the general meeting of September 16, 1948. It would appear that such meeting was a special meeting without set purpose. This being so, it would be tantamount to a general meeting specially held, and the session was entitled to consider any matter that might be designated to come before it, and of which notice had been given.

The purpose as expressed in the second notice would seem to have apprised the membership of what was intended to be deliberated upon. The only matter which was a “current problem” which the Official Board had had referred to it, as appears from the pleadings, was the question of disaffiliation. In any event, even if more than one problem had been so referred, the question of disaffiliation was included and the members were informed of the prospect of making a report and being prepared for action thereon. The reason underlying the necessity of including a statement of the purpose of a special meeting in a notice is that no member be misled or unadvised and so be unable to express himself and vote. The subject of disassociation had been a subject for controversy and debate for some months. It was of utmost and paramount interest to all of the members. It cannot be said that any member was unadvised, ignorant of the purpose of the assemblage, or deceived as to its nature by the notice. Singularly, neither have the individual plaintiffs sworn that any of them was misled or unadvised of the purpose to consider disaffiliation, nor has any other member sworn that his failure to attend the meeting was occasioned by an alleged faulty notice. Actually, the individual plaintiffs were present at the meeting of September 28, 1948. The notice was sufficient compliance with the by-laws and served to inform the membership of the impending matter to be considered.

That there is no question of the interest and accord of the membership is exemplified by the subsequent written approval of the questioned action by approximately 90.04 per cent of the total membership.

Plaintiffs attempt to read into the various references in the by-laws of the local to the National that an irrevocable contract has been entered which prevents the local from ever disaffiliating or disassociating with the National.

The argument that the references in the by-laws of the local to the National demonstrates an intent for a permanent affiliation, does not make such a purpose clear. By amendment of the by-laws, as therein provided, these references could be changed. The provision in the application for membership in the local that the applicant will abide by the constitution of the National applies only so long as there is an affiliation and the by-laws remain unchanged. Such a statement need not be read to require continued affiliation, but would seem to require only loyalty so long as loyalty was due.

Article III, section 3 of the constitution of the National requiring approval by it of the by-laws of the Local does not preclude the Local from severing its connections with the National. If the Local is independent it is plain that it could disaffiliate regardless of such a provision. If it is dependent, it could not. Using this phrase as a guide to aid in interpreting the contract does not result in a clear conclusion that the theory advanced by plaintiffs is thereby proven.

From the facts as exhibited by the affidavits, there is no such clear showing as would warrant the issuance of an interlocutory injunction. Plaintiffs have not shown that the portions of the by-laws applicable to the call and notice of a special meeting were violated.

As stated in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299:

“There is no power, the exercise of which requires greater caution, deliberation and sound discretion, and which is more dangerous in a doubtful case, than the issuing of an injunction.”

In Allman v. United Brotherhood of Carpenters, &c., 79 N. J. Eq. 150, 81 Atl. 116, the court said:

“It is perfectly well settled that whenever the complainant’s case is doubtful on the law or the facts a preliminary injunction will not issue. To doubt is to deny. To justify the issuing of an interlocutory injunction the case made by the complainant must exhibit a right free from doubt or reasonable dispute. Robert v. Scull, 58 N. J. Eq. (13 Dick.) 396.”

The plaintiffs’ case, not being so clear of doubt on either the law or the facts, an interlocutory injunction will not be granted and the preliminary restraint will be dissolved.