author: Black, J. White, J.

text:
    George O. Knapp, complainant-respondent, v. Heidritter Lumber Company, defendant-appellant.
    [Argued October 21st, 1925.
    Decided February 1st, 1926.]
    1. A bill of complaint, which on its face does not show a cause of action, should be stricken out by the court, when moved to do so, on notice.
    2. Under P. L. 1898 p. lt8l; P. L. 1908 p. SU § 28, which provides that it shall be lawful to maintain an action on a contract by one person against another, notwithstanding the. consideration of the contract did not move from such person, it must appear that the contract was made for that person’s benefit, a possible benefit to such a person by the performance of the contract is not enough to give him the right to maintain an action upon the contract.
    On appeal from an order of the court of chancery.

      Mr. Harry A. Augenblickj for the appellant.

      Mr. Albert W. Harris, for the respondent.
   The opinion of the court was delivered by

Black, J.

The complainant, who was the defendant in an action of law, filed a bill to enjoin the action. Also, to compel the defendant to execute and deliver to the complainant a release of a mechanics5 lien. The mechanics5 lien was filed against the land described in the hill of complaint located in the village of South Orange. The action at law, as stated in the bill of complaint, was commenced to enforce the mechanics5 lien claim. The mechanics5 lien claim amounted to the sum of $3,135.09 and was for lumber furnished to a contractor, Samuel J. Hale, for the erection and construction of the building of the complainant.

The bill of complaint alleges and seeks to have the benefit of an agreement, made in the month of September, 1924, between the contractor, Samuel J. Hale, and Joseph 0. Paul, as trustee, for the creditors of Samuel J. Hale. The special provisions of the agreement, which complainant claims were made for his benefit, are:

First. An assignment of all the mentioned contracts to the trustee, who is to pro rate and pay the profits accruing under such contracts, to each of the signing creditors.

Second. That the creditors will not sue, levy or attach any of the personal property of Samuel J. Hale or begin any action at law or in equity against him.

Third. And by the thirteenth clause of the agreement, it is provided, the creditors will give release to all claims, which they may have and which may be required for the purpose of releasing any lien of the New Jersey Mechanics’ Lien law. The bill of complaint also alleges that the complainant has no defense to the action at law, and can find relief only in the court of chancery. An examination of the agreement annexed to the bill of complaint shows that the complainant is not a party to the agreement.

On notice and motion to strike out the bill of complaint after hearing, an order was advised refusing to strike out the bill of complaint. From that order, this appeal was taken.

There is no allegation in the bill of complaint and noth-' ing to show that the complainant ever accepted the agreement, or that the trustee has ever carried out its provisions, or that the complainant tendered himself ready to accept its terms.

There is no allegation that the complainant ever paid what was due, if anything, to the trustee. The agreement was between the contractor, a trustee and his creditors. The complainant was not a party to it.

The bill of complaint on its face does not show a cause of action, and for this reason alone the motion to strike out the bill should have been granted.

But, even so, it is quite difficult to see how the complainant can succeed. He claims the benefit of the act '(P. L. 1898 p. 481; P. L. 1908 p. 541 § 28), which provides that it shall be lawful for any person for whose benefit any contract may have been made to maintain an action upon the contract in his own name, at law or in equity, notwithstanding the consideration of such contract did not move from such person. The construction of that statute is not an open question in this court. Its meaning has been firmly settled. Also, its proper application indicated in several eases.

In the case of American Malleables Co. v. Town of Bloomfield, 83 N. J. Law 736, the rule is clearly and succinctly stated thus. In Styles v. Long Co., 70 N. J. Law 301; affirming 67 N. J. Law 413, the court held, that one not a party to a contract has no status to sue upon it if he be a person with whom the contracting parties never meant to come into contractual relations, and that a possible benefit to such party by the performance of a contract is not enough to give him the right to maintain an action upon it. To have that effect, it must appear that the contract was made for his benefit. So, Lawrence v. Union Ins. Co., 80 N. J. Law 135, 136; 13 Corp. Jur. 709; 6 R. C. L. 882 § 271.

From these cases it seems quite clear that the rule is well settled that before one not privy to a contract can maintain an action upon it, it must appear that the contract was made for his benefit and so intended. There is nothing in the agreement that indicates or even suggests that it was made for the benefit of the complainant. A benefit accruing to him is not enough.

The order of the court of chancery is reversed. The case is remanded to that court to enter an order in accordance with this opinion.

White, J.

(concurring). My vote for reversal is based upon the first of the two reasons advanced in the opinion of Mr. Justice Black, namely, because “there is no allegation in the bill of complaint and nothing to show that the complainant ever accepted the agreement, or that the trustee has ever carried out its provisions, or that the complainant tendered himself ready to accept its terms.”

I dissent from the second view advanced by that opinion as I understand it. I think that if this owner-complainant had become a party to the scheme provided for in the agreement, by paying his installments of contract money for the erection of his house as they matured to the trustee for the purposes contemplated by. the agreement, he would have been in a position to invoke the protection of the agreement against a materialman, who, in violation of his contract as contained in the agreement, proceeded to file a mechanics’ lien against complainant’s property.

For affirmance — Minturn, Heteield, JJ. 2.

For reversal — The Chief-Justice, Trenchard, Parker, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, JJ. 13.


source: Caselaw Access Project

author: Katzenbach, J.

license: Public Domain

text:
    Cozy Lake, Incorporated, complainant-appellant, v. Nyoda Girls’ Camp, Incorporated, defendant-respondent.
    [Submitted October 30th, 1925.
    Decided February 1st, 1926.]
    1. The law requires that a party over whose land a stream passes should use the water in a reasonable manner. He must not destroy or render useless, or materially diminish or affect, the application of the water by the proprietors above or below on the stream.
    2. A party may build a dam across a stream on his own land, provided that thereby he does not appreciably diminish the amount of water which should naturally flow onto the land of his neighbor below or materially affect the continuity of the flow.
    3. An upper owner is not making a reasonable use of a stream where he erects a dam, the maintenance of which will materially interfere with the flow of the stream to the land of a lower proprietor.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 97 N. J. Hq. 180.

      Mr. I. Henry Coyne (Mr. Merritt Lane, of counsel), for the .complainant-appellant.

      Messrs. King & Vogt (Mr. Harold A. Price, of counsel), for the defendant-respondent.
   The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from a final decree of the court of chancery dismissing the complainant’s bill. The complainant below and the appellant in this court (hereinafter referred to as the complainant) is a New Jersey corporation owning a tract of land in Jefferson township, Morris county, New Jersey, of approximately one hundred and seventy-five acres, which it is engaged in developing for summer resort purposes. Through this tract of land there originally flowed a stream which rose in the mountains or hills to the north of the tract, and, eventually, found its way into the Roekaway river. The stream flowed in a southerly direction. It was what is termed a live stream — that is, there was a constant flow of water therein during all seasons of the year. It was never dry. Like all streams, its width and flowage varied with the rainfall and seasons. At some time it would be six feet in width, and in the summer season, with a scant rainfall, would narrow to ten inches. Adjoining the complainant’s property on the north and nearer to the source of the stream, the defendant below (hereinafter called the defendant), a New Jersey corporation, known as the Nyoda Girls’ Camp, Incorporated, owned a large tract of land used for the outdoor activities of the Camp Eire Girls of Montclair and vicinity. This tract was acquired by the defendant in 1919. Upwards of twenty years prior to its acquisition there was located on the tract a pond about two or three acres in extent created by a dam across the stream. In order to provide a larger “body of water for use of the Camp Fire Girls, the predecessor in title of the defendant had immediately, before transferring the property to the defendant, erected a concrete core dam on the lower portion of the property. This was in addition to the dam already erected. This created a lake some ten or twelve acres in extent. The new dam contained a spillway some three feet below the top of the dam. In the spillway there were first placed removable batter-boards twenty-four inches in height. In September, 1922, a gate was installed in. the spillway to regulate the flow of water to a water wheel erected below the dam. The gate was twenty-four inches high. In the spring of 1924 the gate was replaced by new batter-boards claimed to be of the same height as the gate and former batter-boards. The defendant claimed that the reason for the substitution was that the batter-boards were more easily removable than the gate in times of freshet. It was admitted by the defendant that the batter-boards were used to maintain the prior level of the lake. •

The complainant, after the acquisition of its property in 1922, erected a dam for the purpose of creating a lake of some forty acres in extent. When the defendant was maintaining the gate in the spillway it would raise the gate for the purpose of operating a water wheel used in connection with its electric plant. This resulted in supplying the complainant’s lake with water. In the summer of 1924 the rainfall was slight. The defendants kept the batter-boards up so that the water was held back and none reached the complainant’s lake unless by seepage. It is not denied that during the summer of 1924 the water of the stream was not permitted to reach the complainant’s property. The defendant’s contention at the hearing was that the complainant was entitled only to such a flow as might pass over the batter-boards. As the water from the stream, due to the drought, did not flow into the defendant’s lake in sufficient quantity to raise the water to the level of the batter-boards, the complainant had no flow of water into its lake. It was not denied that during this period water flowed from the stream into the defendant’s lake. A witness for the defendant testified that in August, 1924, the flow of the stream was one hundred ten-quart pails in three and one-half minutes, or four thousand two hundred and eighty-five gallons per hour.

At the conclusion of the hearing the vice-chancellor delivered an oral opinion which, in effect, adopted the contention of the defendant. He said:

“'The sole question in this case, as I see it, is whether the complainants are deprived of an amount of water which they would have if the batter-boards were not put up. According to the testimony they were batter-boards, and they were taken down, and for a year and a half, perhaps, there were gates there. Then the gates were removed, the batter-boards were restored. The flow of water, according to the evidence, is a matter of fact. It does not seem to me to be any less now that the bat-ter-boards are there than when the gates were there. Therefore, the sole question is whether the complainants are deprived of the proper and usual flow of this stream. I do not think they are. I think they get about as much water now as they did before. I will dismiss the complaint.”

This deliverance met with so pronounced a protest from complainant’s counsel that the court permitted counsel to file a brief. Subsequently, a written opinion was filed which declared the law of the case to be as stated by former Vice-Chancellor Emery in the case of Mayor, &c., of Paterson v. East Water Company, 74 N. J. Eq. 49. The following paragraph, taken from Vice-Chancellor Emery’s opinion, is set forth in the opinion below, namely—

“All that the law requires of the party by or over whose land a stream passes is that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect, the application of the water by the proprietors above or below the stream.”

We accept this as the law of the present case.

The vice-chancellor then applied the law as stated to the facts of the present case in the following language:

“The question, therefore, it seems to me, is entirely one of fact as to whether the complainant is deprived of the proper and usual flow of this stream. I do not think it is. It purchased its property after defendant’s dam was erected, and there is no testimony to show that any water is diverted from its usual channel, and the loss from evaporation and soakage into the ground is not shown to be material.

“T think the complainant receives as much water now that the batter-boards are replaced as it did before, and I shall therefore advise a decree dismissing the bill.”

In this application of the law to the evidence we do not agree with the conclusions of the learned vice-chancellor. In the first place, he finds that the complainant was not deprived of the proper and usual flow of the stream. The evidence is that during the summer of 1924, at the peak of the drought, the stream as it entered the defendant’s lake had a flow of four thousand two hundred and eighty-five gallons per hour. Not a drop of this water, except such as may have by seepage found its way through the earthen portion of the defendant’s dam, reached the complainant’s property. This, we think, was a substantial deprivation of the complainant’s rights. In the recently decided ease of Exton v. Glen Gardner Water Co., 129 Atl. Rep. 255 (not yet officially reported), Vice-Chancellor Buchanan held that a diversion of four gallons a minute (-two hundred and forty gallons an hour) is of such perceptible amount as not to be excluded under the “de minimis” maxim. A man may build a dam across a stream on his own land, provided that thereby he does not appreciably diminish the amount of water which should naturally flow onto the land of his neighbor below, or materially affect .the continuity of the flow * * *. But an upper owner is not making a reasonable use of the stream, and, therefore, incurs liability where he erects a dam, the maintenance of which will virtually amount, through the resulting evaporation or percolation, to the drying up of the stream, to the injury of lower owners, or which will materially interfere with the flow, or with the continuity of power supplied by the stream to a lower proprietor. 27 Bui. Cas. L. 1101 § 87.

The next ground stated by the vice-chancellor for a dismissal of the bill appears to be that the complainant purchased the property after the defendant’s dam had been erected. The fact that the dam was erected prior to the complainant’s acquisition of its property is no ground for denying to the complainant the proper and usual flow of the stream. The defendant had obtained no prescriptive right to the maintenance of the new dam. The complainant acquired by its purchase all the rights of the former owner, of which one was the right to have the water of the stream come to its property in its natural flow, undiminished in quantity and unimpaired in quality. East Jersey Water Co. v. Bigelow, 60 N. J. Law 201.

The statement is reiterated in this part of the opinion that there is no testimony to show that any water is diverted from its usual channel. The evidence appears as to this has already been considered. There appears to be little evidence on the subject of evaporation and seepage. As the lake was, at least, trebled in size by the erection of the new dam, it would seem to follow that evaporation and seepage would increase. There is no present need, however, to consider this question.

The final ground stated by the vice-chancellor for the dismissal of the bill is that the complainant receives as much water, now that the batter-boards are replaced, as it did before. This is a repetition of the reason stated in his oral deliverance. We do not deem the issue in this case to be the question whether or not the complainant receives as much water with the batter-boards up as it did when the gate was in the spillway.

The question presented, as we view the case, is whether the complainant receives the natural and undiminished flow of the stream at all seasons of the year. This is what the complainant is entitled to. It appears that the complainant has not been at all times receiving the quantity of water to which it is entitled. Whatever the defendant is doing, which deprives the complainant of its rights, the complainant is entitled to have prevented by injunction. The evidence is not in such shape as to enable us to settle upon the form of decree and injunction to which the complainant is entitled. It may be that additional testimony will be required to be taken before a final decree and injunction, which will accurately settle the rights of the parties, can be drafted.

The decree of the court of chancery is reversed. The case will be remanded to that court for the purpose of determining the proper form of decree and injunction to be made in conformity with the views herein expressed.

For affirmance — Eone.

For reversal — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, , Gardner, Yan Buskirk, McGlennon, Kays, Hetfield, JJ. 15.


author: White, J.

text:
    Bessie Gordon and Sadie Hordes, complainants-appellants, v. Harold Kaplan, Moses Redler and Lesser Lieberfeld, defendants-respondents.
    [Submitted October term, 1925.
    Decided February 1st, 1926.]
    1. One who accepts employment as an agent to sell real estati for another, whether called a realtor, a broker or a real estate agent, is strictly bound, within the scope of his employment, by the duty of absolute loyalty to his principal. Within that scope profit of the agent other than the commission or compensation which he is to receive from his principal or with his principal’s consent is the profit of the principal, and an attempt by the agent, in whatsoever manner, to divert such profit or any part of it to his own use, is such a breach of his contract of loyalty as will not only make him accountable to his principal for such profit, but will deprive him of his right to the agreed upon compensation or commission.
    2. Anyone who participates in an agent’s fraud upon his principal, by receiving as such, part or all of the resulting fruits of the fraud, knowing them to be such, is also liable to account to the principal just the same as the agent would have been had such fruits come to him.
    On appeal from a, decree of the court of chancery advised by Vice-Chancellor Bentley, whose opinion is reported in 99 N. J. Eq. 195.

      Mr. John W. OckforJ, for the complainants-appellants.

      Messrs. Gross & Gross, for the defendants-respondents Kaplan and Redler.

      Mr. Marshall Van Winkle, for the defendant-respondent Lesser Leiberfeld.
   The opinion of the court was delivered by

White, J.

The bill alleges that one of the defendants, Kaplan, while acting as complainants’ agent for the sale of their tenement-house in Jersey City, “scalped” the sale by interposing another of the defendants, Lieberfeld (whose niece Kaplan was engaged to marry), as a sham purchaser and a pretended reseller between complainants, the real vendors, and one Richard Harold and his wife, who were the ultimate vendees, whereby there was realized an advance in price of $5,000 above the sum complainants accepted, thinking it was the real price, of which advance Kaplan received $1,000 as an alleged commission on the pretended resale (in addition to the commission paid him by complainants), while the alleged sham purchaser and revendor made a profit of $4,000, both of which amounts, as well as the original commission paid to Kaplan, complainants pray that the defendants may be ordered to account for and pay to them. If this allegation is supported by a preponderance of the credible proofs, complainants are entitled to the relief for which they ask. One who accepts employment as an agent to sell real estate for another, whether he be called a “realtor,” or a “broker,” or a “real estate agent,” is most strictly bound, within, the scope of his employment, to the duty of absolute loyalty to his principal. Within that scope his profit (other than the compensation he, as such agent, is to receive from the principal, or with the principal’s consent) is the profit of his principal, and an attempt to evade this rule and to secretly retain such profit or any part thereof for himself, besides making him accountable to his principal therefor, is such a breach of his contract of loyalty as deprives him also of Iris right to receive the agreed upon compensation or commission which the principal was to pay him for his services. Carpenter v. Overland Tire Co., 130 Atl. Rep. 665. So, also, anyone who participates in the agent’s fraud by receiving as such, part or all of the resulting fruits of that fraud, knowing them to be such, is liable to account to the principal just the same as the agent would have been had such fruits come to him.

The learned vice-chancellor whoi heard the case thought the facts exceedingly suspicious, but not sufficiently so to overcome the absolute regularity of the checks, receipts, deposit entries, &c., which accompanied the alleged pretended resale. We are not particularly impressed by this absolute regularity. If Kaplan and Lieberfeld were “scalping” this sale, all this absolute regularity occurred while they were going through the motions intended to look like, and, in fact (except as. to their secret fraud), constituting a real transaction. Naturally they did the things necessary to produce the proper stub entries, deposit entries, checks and receipts usually accompanying such a transaction. They would have been very foolish not to have done so. In order to accomplish the intended fraud (if that is what they were guilty of) they put through what was iu form a real transaction, and, consequently, it, of course, appears to have been put through in the usual way. They could not, in fact, accomplish this particular kind of fraud without doing the things which they did do, any more than they could have put through a real transaction which was not fraudulent, in this way, without doing those same things. Naturally, therefore, the presence in regular form and sequence of these necessary links in the transaction has little evidential value, one way or the other, on the question of whether the transaction was or was not fraudulent in the manner here claimed. The absence of some of these links might he quite different.

We think the substantial things which were actually done in this transaction are more significant than the manner in which they were done. Those substantial things appear to us to have been as follows: The owners (complainants) placed the property in the hands of the real estate agents (the defendants Kaplan and his partner, Redler) for sale at a price of $50,000, which agency was accepted. Some months afterward, and a few days before April 17th, 1922, Kaplan discussed with Mr. Gordon, an attorney and counselor-at-law of New Jersey and a son of one of the owners and a nephew of the other, and who represented them, the question of reducing the asking price and the terms upon which a sale might he effected, and on April 17th, Kaplan told Mr. Gordon that “he thought he had a buyer for the property” and inquired again if $50,000 was the lowest price. Upon his being informed that it was, Kaplan told Gordon that “they could not get the prospective buyer [who he said was one David S. Pine, of Brooklyn] to give more than $43,000, but that he would take it up with him again.” Later, on the same day, Kaplan came to Gordon’s office and said to him: “Well, I can get $45,000 from Pine, that’s the very best I can get for this property. You know that I understand the value of real estate, I have sold a lot of it up that way, and I think you ought to take $45,000, and as a matter of friendship and in order to put the deal through, I will accept $750 as my commission if you will take that price.” After calling np the owners and consulting with, them, Gordon told Kaplan that they could do business if that was the best price they could get, and Kaplan assured him that it was. Kaplan then gave Gordon as a deposit to bind the bargain his, Kaplan’s, personal check for $1,000, drawn to the order of Bessie Gordon, one of the owners, stipulating that if a sale agreement should not be signed the check should be returned to him. This check was endorsed and deposited by Mrs. Gordon, the payee, on the 18th of April and duly collected. Mr. Gordon prepared and dated the sale contract on the same day (April 17th) from complainants, as vendors, to David S. Pine, as vendee, and also prepared an agreement as to the amount of the commission. Mr. Gordon procured the signature of one of the vendors to the sale agreement in duplicate the same evening (the 17th) and the signature of the other vendor the next day, April 18th, and on the latter date sent for Kaplan, had him sign the commission agreement, and delivered the sales agreements to him to show to Pine’s lawyer, after which Kaplan was to bring Pine to Gordon’s office to sign the agreement.

It turned out from the uncontradicted testimony of both Pine and Kaplan, however, that Pine, in fact, never heard of this proposed purchase by him from the Gordons, nor was he consulted about it in any way. He was a light-fixture salesman living in Brooklyn, who never kept a bank account, but he had gone into a few real estate speculations as half purchaser with the defendant Dieberfeld on previous occasions where Kaplan was the vendor’s agent. He claims to have produced his, Pine’s, contributions to these speculations ($500 on one occasion and $3,000 on another) in cash from his own pocket, which is where he says he kept his money. By thus testifying that he made these contributions out of his own cash, which he kept in his own pocket and not in bank, he, in effect, testified that these contributions were not, in fact, made with Kaplan’s money, and there is, of course, no proof to the contrary; but where a cash customer like Pine, who does not deal in checks, is an habitual link in the intervening sales chain whereby quick turn-overs are brought about by the same real estate agent of the original vendors, it becomes after a while a very suspicious circumstance to say the least.

But in the present instance Pine was away “on the road,” and never heard of the purchase he was supposed to make from the Gordons. Naturally, therefore, he did not come to Mr. Gordon’s office to sign the agreement on the 18th, as promised by Kaplan, and on the 19th Kaplan called Mr. Gordon up and reported that Pine was busy, but would be up to sign the next day (the 20th). On the 20th Pine again did not show up and Kaplan again reported to Gordon that Pine could not come up, but that the whole thing would be cleaned up to-morrow (the 21st). On the '21st Kaplan came to Gordon’s office and said: “I don’t think Pine wants this property, but a relative of my intended wife will buy it and I will take you over to his house and we will have it signed.” They went immediately to the house of the defendant Lieberfeld, whom Gordon had never met before, and after the agreement was read by Gordon, Pine’s name was erased and Lieberfeld’s name substituted as the vendee, and the agreements were then signed by Lieberfeld. Title passed in pursuance of this contract on May 25th, when Lieberfeld’s check for $6,000 and Kaplan’s for $2,500, each certified, made up the cash part of the purchase price at the settlement, and upon Gordon then asking Kaplan how it was that he was putting up a part of the purchase-money, Kaplan replied that L'eberfeld was short, and he was putting up $2,500 to help him out.

On April 20th, 1922 (one day before Pine ceased to function as a purchaser in Kaplan’s representations to Gordon, and likewise one day before Lieberfeld was substituted in Pine’s place as above described), Kaplan offered the property in question at a price of $50,000 to the ultimate, and as it is claimed by complainants, the only real purchasers, Richard Harold and his wife, Adelherd, with whom Kaplan had done business before and who (as he had known for a considerable time) were in the market to purchase just such a property. Kaplan represented to them that the property belonged to the complainants, and that he was selling the property on their behalf. This offer was accepted on the same day by the Harolds, and as a deposit on account of the purchase price, Harold gave Kaplan a check for $2,000, dated April 20th, drawn to Kaplan’s order and by him endorsed and deposited in his personal account on April 21st. Kaplan warned the Harolds not to talk about their purchase until they got title. This $2,000 so paid by Harold was paid by Kaplan by his personal check to Lieberfeld on or before April 2-lth, and was used on May 25th by Lieberfeld in malting up the $6,000 he paid in at the settlement on that date with the Gordons. The Harolds testified that when the sale agreement was produced by Kaplan a few days later for the Harolds to sign, it contained Lieberfeld’s name as vendor instead of Mrs. Gordon’s name, and the Harolds were then told by Kaplan that this was so because Lieberfeld was “a good friend of Mrs. Gordon’s and held the title so as to transfer it while she was out in the country.” The settlement on this sale to the Harolds took place on Majr 31st, whereupon, immediately afterward on the same day Lieberfeld gave a check drawn to the order of Kaplan and Redler for $3,500, and Kaplan and Redler gave a check to Kaplan for $1,000.

The defendants claim that Lieberfeld (who Kaplan testified is a real estate speculator) was the real but (except to Kaplan) undisclosed purchaser from the Gordons all the time and that he paid Kaplan as a deposit on the prospective purchase a check to Kaplan’s order for $1,000 on April 11th. Ho receipt was taken for this check nor does the check itself contain any reference to the purpose for which it was given, but the stub in Lieberfeld’s check book states that it was a payment on account of this alleged purchase. Lieberfeld also testified that he intended to take Pine into the deal and take the contract in his name, but that at the last moment he could not find Pine and so had to take the contract in his own name and to borrow $2,500 from Kaplan in order to put it through, instead of having Pine supply this $2,500 as he, Lieberfeld, expected. He further testifies that on the same day upon which he signed the contract for the purchase from the Gordons and immediately after his doing so (which date he fixes as the 18th and not the 31st, as testified by Mr. Gordon) Kaplan came to his house and was employed by him to resell the property if he could find a purchaser at the price of $50,000, and that he agreed to pay Kaplan if he succeeded in so doing a commission of $1,000. All three defendants say that the $3,500 paid to Kaplan and Eedler by Lieberfeld was a return by the latter of the $3,500 advanced by Kaplan and the payment of the $1,000 commission for the resale to the Harolds; and Kaplan and Eedler say that of the $3,500 advanced by Kaplan to Lieberfeld, $1,500 was supplied to Kaplan by the firm of Kaplan & Eedler, and that the $1,000 paid by that firm to Kaplan out of the $3,500 Lieberfeld check was a return to Kaplan of the $1,000 advanced personally by Kaplan, the $1,500 contributed ■ by the firm and $1,000 commission also included in the Lieberfeld $3,500 check being retained by the firm. Ail of this check pajment story is corroborated absolutely by the checks, the stubs and the bank deposit book entries, and it is not surprising that the learned vice-chancellor was impressed (as we think unduly) by these documentary sign posts at each turn as he was led through this complicated labyrinth. In addition to the above-mentioned circumstances it also appeared that Lieberfeld had made other payments, besides the $1,000 check of April 11th, to Kaplan in the matter of real estate purchases by the former from the latter as agent, in one of which at least (where the payment took place only two or three weeks before the present transaction) the deed (as Kaplan attempted to have done here but was prevented by the Harolds) was made direct from the original vendors to the ultimate purchaser, although Lieberfeld, through his shadow-man, Pine, was an intermediate buyer and reseller, and also there were several checks of Lieberfeld’s indicating profit payments to Pine upon real estate-contract transactions in which Kaplan also seems to have participated as the vendor’s agent.

The above-recited circumstances taken together seem to us to give to the transaction such a suspicious taint as to render it quite obvious that if, in fact, the sale to the Harolds on the 20th took place before the actual closing of the contract of sale to Lieberfeld by his signature thereto on the 21st, Kaplan was guilty of perpetrating not merely a technical, but an intentional moral fraud upon his principals by diverting from them $5,000 of the purchase-money for which, as their agent, he sold the property to the Harolds. A eare■ful consideration of all of the evidence convinces us that the date- (the 21st) testified to by Mr. Gordon, and not the date (the 18th) testified to by Lieberfeld, is the true date when (after Pine had failed to appear on each of the three succeeding days after the 17th, which is the date which the •written contract bears) Lieberfeld’s name was substituted for that of Pine, and he signed the Gordons’ sales contract. According to the circumstances established by the evidence in this case there was no contract legally binding upon either party until Lieberfeld executed the written contract on the 21st, and, consequently, until that time, Kaplan’s loyalty obligation to the complainants remained in full force, and he was bound to secure to them the benefit of the sale he made in the meantime to the Harolds for a higher price. After the sale by him to the Harolds, his participation in the signing and delivery of a contract from his principals to Lieberfeld at a lower price than the Harolds were paying, without disclosing the fact of the sale already made to the Harolds, was a fraud upon the rights of his principals and a violation of his duty of loyalty to them.

But is Lieberfeld to be held accountable for the $4,000 which came to him as the result of this fraud? That, of course, depends upon whether he was a party to the fraud or had knowledge of it when he accepted the benefit of its fruits. We think the evidence clearly indicates that Lieberfeld as well as Kaplan knew quite well all along that it was Kaplan’s fraud and nothing else which was to produce the profit which they subsequently divided in the proportions and in the manner above mentioned between them. We think the delay in having Lieberfeld bind himself to purchase from the Gordons was for the purpose of playing safe by first being sure of the sale to the Harolds, and that being so, of course, Lieberfeld, knowing as he did that Kaplan was the Gordons’ agent, knew perfectly well that he was entering into a fraudulent scheme, and the profit which he subsequently received he knowingly received as the fruits of that fraud.

We conclude, therefore, that the defendants must account to complainants for their profit- — Lieberfeld for the $4,000 which he received and retained, and Kaplan’s firm for the $1,000 which it received, and that the defendant Kaplan, or his firm, must be decreed to have forfeited the original commission of $?50 paid to Kaplan by the complainants and to return that payment to them.

The decree of the court of chancery is therefore reversed, and the case remanded to that court, in order that a decree may be made in accordance with the views herein expressed. The costs are to be paid by the respondents.

For affirmance — Kalisch, J. 1.

For reversal — The'Chibe-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 14.


author: Kays, J.

text:
    William W. Haskell, petitioner-appellant, v. C. Helen Hopkins Haskell, defendant-respondent.
    [Submitted October term, 1925.
    Decided February 1st, 1926.]
    1. Unjustified refusal of sexual intercourse persisted in willfully, obstinately and continually for a period of two years is a ground for divorce for the cause of desertion.

      2. In. such an action by the husband against the wife surrounding circumstances, as evidenced by the testimony of witnesses as to the mental and physical condition of the husband and the marital relations which he reluctantly confided to them, may be sufficient corroboration to satisfy the legal rule.
    On appeal from a decree of the court of chancery advised by Advisory Master Child.

      Messrs. Whiting & Moore (Mr. Borden D. Whiting, of counsel), for the petitioner-appellant.
   The opinion of the court was delivered by

Kays, J.

This was a suit for divorce by the husband against the wife. • The defendant did not enter an appearance in the court of chancery, nor file an answer, nor did she file a brief in this court. The case in the court of chancery was heard before a special master, to whom it was referred by the chancellor, which master reported in favor of a decree for divorce as asked for in the petition.

The petition sets up desertion on the part of the wife. The advisory master did not agree with the recommendations . of the special master and advised against a decree for divorce, dismissing the petition.

The desertion in this ease, according to the testimony of the petitioner, was due to the fact that the defendant refused to have sexual intercourse with the .petitioner from the time of their marriage and for a period of about two years thereafter, when the petitioner left the defendant in Pebruary, 1922. The testimony of the petitioner was that he and the defendant from the time of their marriage, which occurred on August 24th, 1920, until Pebruary, 1922, occupied the same bedroom in the house of the defendant’s mother, with whom they boarded. The petitioner testified that he treated the defendant kindly, and that he endeavored to reason with her in regard to the marital rights, and that in each instance she rejected him and fought against his efforts. The petitioner stated that the defendant gave as a reason that she was opposed to having children, and was afraid that some serious trouble might result if such should be the case, as she had heard of other women in her family who had had trouble of this nature.

The petitioner testified that at the time he left his wife, in February, 1922, his physical and mental condition had become such as to compel him to do so. ■

The testimony which was offered .to corroborate the circumstances surrounding the married life of the petitioner and the defendant was given by two friends and a physician who had been a physician in the petitioner’s family, and who also had been a friend of his for a number of years. One of the witnesses was a Mrs. Wade, who knew the petitioner well, and with whom the petitioner had made his home for some time prior to his marriage.

Mrs. Wade testified that at the time of his marriage the petitioner was jovial and healthy, and presented the appearance of a clean-cut chap, and had served in the army during the world war; that after his marriage he visited her house two or three times a week, and often with his wife. She further stated that after a time he seemed depressed and not like himself. On different occasions, after noticing this, she asked him what the trouble was, and though he did not tell her for some time, she continued to ask him, and finally he told her his wife would not have anything to do with him and did not want to have intercourse with him.

The testimony of Mrs. Wade’s son, Elmer E. Wade, was substantially the same as that of the mother. He stated that he had known the petitioner for a number of years. He noticed the change in him some time after his marriage, and after he had asked him why he appeared so unhappy, he finally told him it was because his wife refused to have sexual intercourse with him, and several times thereafter he asked the petitioner if any change had taken place in his wife’s attitude toward him and his answer was always “No.”

The family physician was called as a witness, who testified to the effect that the petitioner came to him and stated the circumstances which existed between himself and his. wife; that he afterward made a physical examination of the petitioner and was of the opinion that he was capable of performing sexual intercourse; that the petitioner at the time of the examination was mentally ccblue” and very much depressed, nervous and not as physically strong as before his marriage. He stated as his opinion that a man who had been deprived of sexual intercourse under such circumstances as appeared in this case would be likely to be affected as this man was, and that the symptoms which the petitioner showed could thus be accounted for.

We are of the opinion that the decree in this case should be reversed, and a decree for divorce on the ground of desertion granted.

It is well established in this state that unjustified refusal of sexual intercourse persisted in willfully, obstinately and continually for a period of two years is a ground for divorce for the cause of desertion, which rule is laid down in the case of Parmly v. Parmly, 90 N. J. Eq. 490, and Raymond v. Raymond, 19 Atl. Rep. 430.

The ground, however, upon which the advisory master based his conclusion was that there was no corroboration whatever of the petitioner’s testimony that the defendant refused to have sexual intercourse with the petitioner.

From the circumstances in this case it could not be inferred that there was collusion between the petitioner and defendant. The matter of corroborating the refusal of a wife to carry out the proper marital relations which are expected of her by her husband in most instances is likely to be quite difficult. They are guarded and surrounded with the greatest secrecy, and regarded as sacred. A man and his wife are not likely to approach each other in such matters through third persons, not even through members of the other’s family, nor through their family physician. It is evident in this case, the petitioner was loath to tell his most intimate friends of his trouble, and it was not until he had been pressed for an answer by them on several occasions that he finally unburdened his mind to them.

This it seems was the most natural thing for the petitioner to do. He had known his family physician intimately for a number of years: he had made his home with Mrs. Wade and her son, and these being his closest friends, were the people in whom he would confide with the hope that he might obtain some assistance in bringing about a happier relation between himself and his wife.

Vice-Chancellor Learning, commenting upon the subject of corroboration, in the case of Robinson v. Robinson, 83 N. J. Eq. 150 (affirmed by this court in 84 N. J. Eq. 201), said: “Surrounding circumstances, adequately established, may be of a nature to fully supply the office of corroboration which the law requires in matrimonial cases.”

We are therefore of the opinion that the circumstances surrounding this case, as evidenced by the testimony of the witnesses as to the mental and physical condition of the petitioner, and the matters which he confided to them, were sufficient corroborating circumstances to justify granting a divorce.

The order of the court of chancery dismissing the petition is therefore set aside, to the end that a proper decree may be entered for the petitioner, granting the relief asked for in the petition.

For affirmance- — Parker, Minturn, Kalisch, Black, JJ. 4.

For reversal — The Chiee-Justice, Trenchard, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 11.


author: Hetfield, J.

text:
    Emily Freda Ballantine et al., complainants-appellants, v. Ferdinand L. Stadler et al., defendants-respondents.
    [Argued October 21st, 1925.
    Decided February 1st, 1926.]
    1. To invalidate a contract on the ground of duress, it must appear that it was entered into because of fear of the threatened injury, otherwise there is no duress, which will ordinarily invalidate a contract entered into after opportunity for deliberate action.
    2. Suitors who seek to repudiate their deeds of release are bound to use reasonable diligence, after the delivery of the instruments of settlement, both to ascertain their rights and to enforce them in courts of equity.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, and reported in 99 N. J. Eq. 179.

      Mr. Lee F. Washington, for the appellants.

      Messrs. Cole & Cole, for the respondents.
   The opinion of the court was delivered by

Hetfield, J.

This is an appeal from a final decree of the court of chancery dismissing the bill of complaint, which was- filed to set aside a certain agreement, whereby the complainants assigned and released to> the defendants, Ferdinand L. Stadler, Louis C. Stadler, Lena S. Stadler and Carrie R. Stadler Murphy, all of the right, title and interest of the complainants in the property belonging to the estate of Ferdinand Stadler, Sr., who was the father of the complainant Emily Freda Ballantine and the said defendants.

Ferdinand Stadler, Sr., died April 21st, 1911. He left a widow and seven children. By his last will, which was executed August 4th, 1908, he gave to his wife, so long as she remained his widow, a life estate in all his property, and after her death provided that his two married daughters, Augusta Maulick and Mathilda Mess, be given $1,000 each, and the remainder of his estate be divided among the remaining children, Ferdinand, Jr.s Lena, Freda, Carrie and Louis.

The said agreement was executed May 23d, 1911, and provided that the complainant Emily Freda Ballantine was to receive, in lieu of her one-fifth interest in the father’s residuary estate, the sum of $1,000, to be paid upon the death of the mother, which placed her in the same situation as her two sisters, Augusta and Mathilda.

The complainants now allege that the agreement should be declared invalid, because the complainant Mrs. Ballantine did not sign it of her own free will, hut solely as a result of undue influence and duress brought to bear upon her by the threats, complaints, protests and entreaties of her mother and the defendants Ferdinand Stadler and Lena Stadler, and that she signed the document in order to avoid any further scenes and to save and prolong the life of her mother.

It appears that the father had conducted an ice cream and bakery business at Atlantic City for some thirty-five years, and for several years prior to his death the defendant Ferdinand had full charge of the business, assisted by the other defendants.

According to the testimony of the complainants the alleged threats were made on two different occasions, the first time at the reading of the father’s will at the home of the parents, shortly after his death, and the second time within a week thereafter, when the mother and the defendants Ferdinand and Lena called at the home of the' complainants. It is alleged that Ferdinand and Lena then said they would have nothing further to do with the business unless the complainant Mrs. Ballantine accepted $1,000 in lieu of all other interest in the father’s estate, as they did not intend to conduct the business for her benefit. It is also alleged that the sister Lena said that if they discontinued the business the disgrace would kill the mother, and that Ferdinand made the remark that if the complainant did not sign they would give her one of the damnedest fights she ever had, and that the mother stated that if the complainant wanted money so bad she could take the clothes off the mother’s back.

The defendants Ferdinand and Lena testified that the only statement made to the complainant Mrs. Ballantine by either of the said defendants or her mother was to the effect that if she was to have a one-fifth interest in the ice cream and bakery business formerly conducted by the father, that it would be only fair that she should come down and assist in the work, which Mrs. Ballantine refused to do.

The result of the last meeting was that Mrs. Ballantine agreed to sign a release and accept $1,000, the same as her other two married sisters.

The agreement in question was executed at the home of the complainants, and was signed and acknowledged by both Mrs. Ballantine and her husband in the presence of Eli Chandler, a master in chancery. There was no proof that any discussion was then had between the parties, and it will be observed that several days must have elapsed between the last meeting and the signing of the paper, and during that time there was no evidence of any pressure being exerted or influence exercised for the purpose of inducing her to execute the agreement or restraining her from talking the matter over with her husband and procuring independent advice, if she saw fit; and if the statements and remarks of Ferdinand and Lena, the defendants, and the mother, at the last conference in complainant’s house, operated at that time as a coercive influence, it is clear, in view of all the circumstances, that a sufficient time intervened between that meeting and when the agreement was executed to relieve the complainants entirely from its power.

We do not think that the conduct of the defendants was sufficient in law to destroy the free agency of the complainant. The agreement was executed and acknowledged before a master in chancery of New Jersey, and there can he no doubt but what Mrs. Ballantine clearly and fully understood what she was doing, and that the agreement was the free and well-understood act of her mind. Considered as a whole, the evidence in the case not only fails to prove duress, hut shows that the deed was the act of a mind unimpaired by any threats or undue influence.

Duress is defined to be that degree of constraint or danger either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness. 13 Corp. Jur. 396 § 310. This definition was approvingly cited by the court of errors and appeals in Byron v. Byron, Heffernan & Co., 119 Atl. Rep. 12, and by the chancellor in Capossa v. Colonna, 95 N. J. Eq. 38.

And the agreement must have been entered into because of the fear of the threatened injury, otherwise there is no duress, which will ordinarily invalidate a contract entered into after opportunity for deliberate action. 13 Corp. Jur., supra.

There is a further ground why the complainant’s bill should be dismissed. The complainants have allowed the agreement which they executed to stand unchallenged for a period of more than twelve years and made no attempt to set it aside until after the death of the mother, which occurred on October 20th, 1923, and whose testimony would have been of great value in this case. They permitted the defendants to conduct the business during this long period without any objection or interference, and there is no proof in the case to show that Mrs. Ballantine was under the coercive influence of the mother and the defendants from the time the agreement was executed until the mother died.

When one seeks to avoid a contract on the ground of duress, the person seeking such avoidance should proceed within a reasonable time after the removal of the duress^ and if a person remains silent for an unreasonable length of time, he may be held to have elected to waive the duress and ratify the contract. 9 R. C. L. 725.

It is well established in this state that suitors who seek to repudiate their deeds of release are bound to use reasonable diligence, after the delivery of the instruments of settlement, both to ascertain their rights and to enforce them in courts of equity. Lutjen v. Lutjen, 64 N. J. Eq. 773.

Equity requires this diligence in an analogy to the statutes of limitation at law for the security of titles to property; to guard against the danger of the loss of evidence by the death, failure of memory or absence of witnesses and proof, and for other important considerations, which rule is laid down in Lutjen v. Luijen, supra.

In Gifford's Administrator v. Thorn, 1 Stock. 702, where the deed of assignment and release attacked was of a residuary estate worth a sum very largely in excess of .the amount actually received and mentioned in the paper, this court held that it was not reasonable diligence for the party, “where there is no disability and no impediment to the vindication of his rights, to lie passive for twelve years and to call on a court of equity for aid, when the lapse of time and his own laches may have deprived his adversary of the means of defense;” and the complainant’s bill was dismissed.

The learned vice-chancellor stated, in his conclusions, that taking all the facts as proven before him, he could not feel that the complainant had produced sufficient evidence for bim to say that the solemn paper signed by Mrs. BaUantine should be set aside and declared void, in which we concur.

The decree below is therefore affirmed.

For affirmance — The Ci-iiee-Justice, Trenohard, Parker., Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yah Bdskirk, McGlennon, Kays, Heteield, JJ. IS.

For reversal — None.


text:
    In the matter of an alleged escheat of lands of William Lutz, deceased.
    [Argued October 29th, 1925.
    Decided February 1st, 1926.]
    The opening of a decree in chancery rests in the discretion of the chancellor, and a refusal to open such decree will not be reviewed by this court where the evidence submitted would be insufficient to overcome that on which the decree was founded.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Berry.

      Mr. Edward L. Katzeniach, attorney-general, for the appellee.

      Mr. John G. Reed, for the appellant.
   The opinion of the court was delivered by

Hetfield, J.

This is an appeal from an order of Vice-Chancellor Berry dismissing a petition filed by the appellant, Jacob H. Lutz, to open a decree of the court of chancery, entered March 23d, 1925, ordering that certain lands situate in Atlantic City escheat to the State of Hew Jersey.

On the 1st of December, 1924, an inquisition was issued out of the court of chancery directed to the sheriff of Atlantic county, requiring him to summon a jury and inquire into the alleged escheat of lands of William J. Lutz, deceased.. The jury, subsequently, made a return that the said William J. Lutz, deceased, was seized of two parcels of land situate in Atlantic City. After the final decree was entered an order was made directing the issuance of a writ of seizure, and a public advertisement of sale of said property to be held on July 29th, 1925, was inserted in a newspaper and posted as required by statute.

On June 30th, 1925, the court of chancery made an order to show cause why the final decree should not be opened and the appellant be permitted to traverse the inquisition. The order was based on the appellant’s verified petition, and the only allegation it contained, showing relationship to William Lutz, deceased, reads as follows:

“Petitioner is the son of Jacob J. Lutz, now deceased, who was a first cousin in blood of said William J. Lutz, said Jacob J. Lutz also had a sister, one Catharine Snow, now deceased, who left her surviving; Margaret Snow, a daughter. Petitioner and said Margaret Snow are related to said decedent, William J. Lutz, in equal degrees of consanguinity, and are heirs-at-law of said William J. Lutz, capable of inheriting the lands, tenements and hereditaments whereof he died'seized as aforesaid.”

The only question to this appeal that need be considered is whether the verified petition was sufficient to warrant opening the final decree. The petition recites simply that William Lutz, deceased, and the appellant’s father, were first cousins, without supporting the statement with any facts as to his family history, places where his relatives resided and where official records might be obtained as to date of births, deaths, &c.

There is no reference to anyone who knew any members of appellant’s family and could give information as to relationship. If the decree had been opened and the appellant had testified to only such facts as are contained in his petition, and offered no further evidence, the court would not have had sufficient grounds to set the proceedings aside.

In Boyer v. Boyer, 77 N. J. Eq. 144, it was held that “a petition to vacate a default decree in equity should be accompanied by specific affidavits setting forth in detail all the evidence on which the petitioner relies, and, on the return of the order to show cause, counter affidavits may be read.”

Our conclusion is that the appellant has not shown that he is entitled to have this decree opened for the purpose of showing a relationship to William Lutz, deceased, and the order dismissing the petition of appellant, vacating the order to show cause and removing the restraint from the treasurer of this state, is affirmed.

For affirmance — The Chief-Justice, Tren chard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Van Buskirk, McGlennon, Heteield, JJ. 11.

For reversal — Lloyd, Gardner, Kays, JJ. 3.


author: Per Curiam.

text:
    Commercial Trust Company, executor and trustee, &c., v. Charles Heintz et al.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 98 N. J. Eq. 15.

      Mr. Hugo Woerner, for the appellants.

      Messrs. Fish & Fish, for the respondent Commercial Trust Company.

      Mr. Charles Drewen, for the respondent Johanna Hartman.
   Per Curiam.

The bill in this case was filed by the Commercial Trust Company, as executor and trustee under the will of the late Clara Heintz Johnson, to obtain a construction of that instrument, and a determination of the identity of certain of the legatees named therein. Upon the hearing had in the court of chancery before Vice-Chancellor Lewis, the various provisions of the will were construed and the identity of the several legatees determined. One of the legatees named in the will was “Jennie Hartman.” It was demonstrated at the hearing that there was no such person in being at the time of the making of the will. It was proved, however, that the testatrix then had two relatives, one named Johanna Hartman, who was a granddaughter of a first cousin of the testatrix, and the other a Mrs. Jennie Heintz, the wife of Ferdinand Heintz, a cousin of the testatrix. Each of these two persons claimed to be the one intended by the testatrix as her legatee under the name “Jennie Hartman,” and it was conceded at the hearing by all parties in interest that the one or the other of them is the intended legatee. The learned vice-chancellor held, on the testimony taken before him, that Johanna Hartman, the granddaughter of Charles Heintz, was the person intended by the testatrix as her legatee under the designation of “Jennie Hartman.” The present appeal is taken by Jennie Heintz from so much of the decree as so adjudges.

A careful examination and consideration of the proofs sent up with the appeal, and of the will itself, lead us to the conclusion that the vice-chancellor was entirely justified in his holding that the respondent Johanna Hartman was the person whom the testatrix intended should take the legacy bequeathed to the non-existent “Jennie Hartman.”

This conclusion leads to an affirmance of the decree under review.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — Hone.


author: Pee Cueiam.

text:
    George Blackburne, respondent, v. Eva L. Blackburne, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes.

      Mr. Merritt Lane, for the appellant.

      Mr. Francis Child, for the respondent.
   Pee Cueiam.

In June, 1934, Mrs. Blackburne filed a bill for maintenance against her husband, George Blackburne, under the statute. To this bill the husband filed an answer denying the charges upon which the wife based her right to relief. In September of that year the husband filed a petition for divorce against the wife, charging her with acts of adultery committed with one Washington E. Carton. The wife filed an answer to this petition denying the charges. In January, 1935, the wife filed another petition, praying a divorce from her husband on the ground of extreme cruelty, based, substantially, upon the same allegations that had been set out in her bill for maintenance. By agreement, these three cases were consolidated and tried before Vice-Chancellor Backes, and at the close of the hearing a decree nisi was entered, granting to the husband a divorce from his wife on the ground of adultery, dismissing the wife’s petition for divorce on the ground of extreme cruelty, and, apparently, leaving the maintenance suit undecided. The wife has appealed from so much of the decree as grants a divorce to her husband and dismisses her petition for divorce.

Our examination of the testimony sent up with this appeal (over six hundred printed pages) has led us to the conclusion that the learned vice-chancellor was entirely justified in his findings of fact — that is, that the proofs fully support his conclusion that the wife was guilty of adultery with the co-respondent, Carton, on the occasions set out in the husband’s petition, and that the acts of cruelty referred to in the wife’s petition for divorce.were not of a character which entitled her, under the statute, to the relief sought. An attempted analysis of the testimony, in our opinion, would serve no good purpose, and we content ourselves, therefore, with a mere declaration of our conclusions.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Kateenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Kays, Heteield, JJ. .14.

For reversal — None.


author: Pee Curiam.

text:
    Mabel T. Brower, complainant-appellant, v. Clifford H. Brower and Madeline Brower, his wife, defendants-respondents.
    [Submitted October 30th, 1925.
    Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor -Berry, whose opinion is reported in 98 N. J. Fq. 218.

      Mr. Alston Beelcman, for the appellant.

      Mr. Howard S. Higginson, for the respondents.
   Pee Curiam.

The bill of complaint in this cause seeks, amongst other things, to establish a resulting trust, in the complainant-appellant, in certain real estate situate at Red Bank, Hew Jersey, conveyed to the defendant-respondent by W. Harold Powers and Frank E. Price by deed dated February 3d, 1920, and recorded in the Monmouth county clerk’s office in book 1119 of deeds, pages 464, &c., on the ground that the purchase price for the property was paid by Trevone H. Brower, the father of the respondent Clifford H. Brower and the husband of the appellant.

Trevone H. Brower married appellant in July, 1917, his first wife, the mother of Clifford H. Brower, having died in 1915 or 1916. Trevone H. Brower died September 10th, 1923.

The decree below, advised by Vice-Chancellor Berry, dismisses the bill of complaint so far as it seeks to have established a resulting trust or a lien or interest in the lands in question in favor of the appellant.

The learned vice-chancellor, in his conclusions, orally delivered, finds—

“The evidence in this case is overwhelming, and conclusive, to the effect that the conveyance of the land here involved was made to the defendant for the purpose of defrauding the creditors of Trevone H. Brower, and this with the knowledge and approval of the complainant. She participated in the attempted fraud and cannot now be relieved from it.” Besson v. Eveland, 26 N. J. Eq. 469, Geroso v. DeMaio, 75 N. J. Eq. 410; Gould v. Burley, 75 N. J. Eq. 512.

“With respect to the real estate here involved, the complainant does not come into equity with clean hands and the bill, so far as it claims a resulting trust in the land mentioned or any lien thereon or interest therein, on behalf of the complainant, will be dismissed.”

We agree with the learned vice-chancellor in this finding and conclusion, and, as this is the basis of the only ground of appeal urged and argued, the decree below is affirmed, for the reasons contained in the foregoing conclusions of the vice-chancellor.

For affirmance — The Chief-Justice, Trenohard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — None.


text:
    Solomon Aron, appellant, v. Charles Wagner, respondent.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 98 N. J. Eq. 50.

      Mr. Frederick W. Wooley and Messrs Biker & Biker, for the appellant.

      Mr. W. Howard Demarest, for the respondent.
   Per Curiam.

The decree appeal 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, Trenohard, Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 14.

For reversal — None.


text:
    Bertha A. M. Kern, respondent, v. Agnes G. Force et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in S N. J. A3v. B. 1090.

      Mr. Fdward B. McOlynn, for the respondent.

      Mr. Thomas Brunetto, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trencha^d, Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — None.


text:
    Florence P. Shinn et al., respondents, v. Samuel Cohen et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery, where Yice-Chancellor Ingersoll filed the following conclusions:
    “On October 7th, 1924, the defendants, Samuel Cohen and Louis Baker, trading as Atlantic City Express and Storage Warehouse Company, let to Florence P. Shinn certain premises in Atlantic City for a term of five years at the rent of $30,000, payable $500 on the sixth day of each month in advance. The lease also included the good-will of said business, and an agreement that said Shinn would make and execute a mortgage upon certaiSi property in Atlantic City in the sum of $7,000 ‘to secure the purchase price of two certain automobiles trucks this day sold and delivered by the first parties to the second party, as well as to secure the first installment of rent under the within lease * * *.’
    “This mortgage was duly executed by Mrs. Shinn and James M. Shinn, her husband.
    “On said date a bill of sale in the usual form for personal property was made by Cohen and Baker to Mrs. Shinn and the trucks delivered to her. This bill of sale did not comply with the provisions of ‘An act relating to and regulating the sale and purchase of motor vehicles, requiring presence of manufacturer’s number on same, requiring issuance of bill of sale and assignment of same and providing penalties therefor,’ approved April 15th, 1919, laws 1919, page 357.
    “On the 21st day of January, 1925, the said Cohen and Baker canceled and surrendered the said lease; in said cancellation, which was also signed by Mrs. Shinn, appears the following:

      “ ‘This mortgage aforesaid is hereby ratified and confirmed in all its terms, and this indenture shall serve as an acknowledgment that there is due upon the signing here by the second party to the first part the said sum of $7,000 mentioned in the said mortgage; provided, however, that instead of the monthly payments of $200, as provided in said mortgage, the second party shall be at liberty to pay such amounts on account of the principal amount of the mortgage as she may deem fit from time to time; provided, however, that the entire principal of said mortgage shall be due and payable within three years of its date.’
    “On March 23d, 1925, Mrs. Shinn caused to be served upon Cohen and Baker, or one of them, a notice as follows:
    “ ‘Atlantic City, N. J., March 23, 1925.
    To Samuel Cohen and Louis Baker:
    We are herewith returning to you two Acme Trucks, one Serial No. 509T-4, Engine No. 509L-4, year 1921, and the other Serial No. 8545C, Engine No. 6682E, year 1920, which said trucks have been in our possession, 'but to which we have never had any legal title in accordance with Chapter 168, Laws of 1919, and amendments thereto, inasmuch as no manufacturer’s bill of sale was ever delivered to us. Title to these trucks has never been given to us and is still in you, who are the owners thereof.
    Floeence P. Shinn,
    James M. Shinn.’
    “On the following day the following letter was sent to Mrs. Shinn:
    “ ‘March 24, 1925.
    Mrs. Florence P. Shinn, Mr. James M. Shinn, 2118 Pacific Ave., Atlantic City N. J.
    Dear Mr. and Mrs. Shinn:
    Mr. Samuel Cohen has handed me a notice which was delivered to him yesterday, addressed to him and to his partner, Louis Baker, concerning two Acme Trucks, and has also shown me a copy of a receipt given you for $513.75.
    From the tone of your communication I assume that you now repudiate the transaction whereby you purchased the trucks, and, of course, repudiate the mortgage given to secure the payment thereof. I would suggest that you advise your lawyer that you did receive a bill of sale for these two trucks on the date this transaction was closed.
    This is also to advise you that, unless the interest on the balance of this mortgage is paid promptly when due, proceedings will be instituted to foreclose the same.
    Tours truly,
    Morris Bloom.’

      ■ ■ “The trucks remained in the garage, where they had been kept on the property of of Cohen and Baker, and which, on the 21st day of January, they had rented to one Parker.
    “Mrs. Shinn paid the $500 installment of rent (together with interest), which was secured by the mortgage.
    “The complainants pray that the said bond and mortgage be surrendered and canceled of record, and that defendant by cross-bill pray for a foreclosure thereof.
    “The question to be determined is, Was there a valid consideration for which the mortgage was given?
    “Admittedly, the bill of sale for the trucks was not in accordance with the act of April 15th, 1919. This act has been considered by the supreme court in Stein v. Scarpa, 96 N. J. Law 86, which held: eA sale of an automobile, in which the seller does not comply with the provision of the act of 1919, may be rescinded by the purchaser, and the purchase price recovered.' This opinion was sustained by the court of errors and appeals.
    “In Arotzlcy v. Kropnitzlcy, 98 N. J. Law it was held that a bank check given in part payment for a motor vehicle made in violation of chapter 168 of the laws of 1919 (P. L. p. 857), was unenforceable in the hands of the payee, being a feature of the unlawful sale.
    “Counsel for the defendants claim that Vice-Chancellor Buchanan has taken another view in Gaub v. Mosher, 8 N. J. Mis. R. 607; but the vice-chancellor, in the opinion, differentiates the- case he was then deciding from the Stein Case, supra, and the Arotzlcy Case, supi'a.

    “In the Stein Case the court found that both parties had acted innocently, and sustained the purchaser's claim of right to rescind and recover back the purchase price.
    “In the Arotzlcy Case, evidently neither partjr was innocent, and neither could expect aid from the court.
    “The present case follows the Stein Case, and, unless the surrender of January 21st, 1925, is a sufficient consideration for the mortgage, the prayer of the bill must be granted.
    “A reading of this paper is clear that it did no more than ratify and confirm the mortgage, and acknowledge the validity of the mortgage based upon its original consideration.
    “The cross-bill will be dismissed, and, as the payment of the mortgage is not enforceable, it is useless that it remain of record, and a decree will be advised in favor of the complainants.” . ’

      Mr. Isadore Sachs, for the respondents.

      Messrs. Cole & Cole, for the appellants.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Treechard, Parker, Mieture, Kalisch, Black, Katzeebach, Campbell, Lloyd, Gardeer, Vae Buskirk, McGleeeoe, Kays, Het-EIELD, JJ. 14.

For reversal — None.


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    Margaret W. Coe, respondent, v. Benjamin J. Coe, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 97 N. J. Eq. 57.

      Mr Howard S. Dodd, for the respondent.

      Mr. William Ripley Cobb, 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 Backes.

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, McGlennon, Kays, Heteield, JJ. 14.

For reversal — None.


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    In the matter of the appeal of Edward Beam et al., substituted trustees, from an order of the orphans court of the county of Passaic, in the matter of the last will and testament of Sarah A. Cooke, deceased.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Yice-Ordinary Griffin, whose opinion is reported in 96 N. J. Eq. 589.

      Mr. Eugene Blankenhorn■, for the appellant.

      Messrs. Griggs & Harding, for the respondent.
   Per Curiam.

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

Eor affirmance — The Chiee-Justice, Trenchard, Parker, Kalis ch, Black, Katzenbach, Cambbell, Lloyd, White, Gardner, Yan Buskirk, McGlennon, Kays, Heteield, JJ. 14.

For reversal — None.


text:
    Rose E. Fike, respondent, v. Roy E. Fike, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised hy Vice-Chancellor Buchanan, whose opinion is reported in 8 N. J. Mis. B. J/8B.

    .Messrs. McCarter & English, for the respondent.

      Mr. Robert Newton Crane, for the appellant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Teenchaed, Pabkee, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gaedneb, Van Buskiek, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — Kone.


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    M. Bergen Stone et al., appellants, v. Avalon Ice and Cold Storage Company, respondent.
    [Decided December 11th, 1925.]
    On appeal from a decree or order of the court of chancery advised by Vice-Chancellor Ingersoll, whose opinion is reported in 2 N. J. Mis. B. 628.

      Mr. George H. Jacobs and Mr. Clarence L. Cole, for the appellants.

      Mr. Andrew C. Boswell and Mr. Joseph J. Summerill, for the respondent.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Buskirk, McGlennon, Kays, HetFIELD, JJ. 14.

For reversal — Heme.


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    John Ternau, petitioner-appellant, v. Hedwig Ternau, defendant-respondent.
    [Decided February 1st, 1926.]
    On appeal from orders of the court of chancery.

      Mr. Samuel C. Cowart, for the appellant.

      Mr. Edward Stover, for the respondent.
   Pee Cueiam.

John Ternau, the appellant, brought suit for divorce against his wife upon a charge of desertion. The wife answered his petition, denying the desertion, and applied for alimony pendente lite and a counsel fee. This application was granted, and an order entered fixing the alimony at $6 a week and allowing a counsel fee of $75. Some two weeks later counsel for the petitioner moved to vacate this order, and, after hearing, the motion was denied and an order to that effect duly entered. A few days later counsel for the petitioner moved for a rehearing on the application for alimony and counsel fee. This motion, in turn, was denied, and an order of denial entered. Counsel for petitioner then applied for an order to show cause why the several orders hereinbefore recited should not be revoked, and, upon the hearing of this application, it was refused and a formal order to that effect was entered.

The appeal in this ease challenges the validity of each one of these orders. So far as the order granting alimony and counsel fee is concerned, our examination of the case leads us to the conclusion that it was properly made and should be affirmed. As to the other orders brought up by this appeal, we are of the opinion that each one of them was discretionary and not subject to review in this court. As a result, the appeal, so far as it concerns those orders, will be dismissed.

For affirmance — The Chief-Justice, Tbenchard, Parker, Mintuen, Kalis ch, Black, Katzenbach, Campbell, Lloyd, White, Van Buskiek, McGlennon, Kays, Hetfield, JJ. 14.

For reversal — -Kone.


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    Edward Beam et al., appellants, v. Paterson Safe Deposit and Trust Company, defendant.
    [Argued October term, 1925.
    Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 96 N. J. Fq. HI.

      Mr. William B. Beam, for the appellants.

      Messrs. Griggs & Harding, for the respondent.
   Per Curiam.

The decree in this case will be affirmed, for the reasons stated by the vice-chancellor. We, however, express no opinion upon the meritorious questions argued, for the reason that they are involved in the appeal now pending in the prerogative court. Should that appeal be adversely decided to the appellants here, an appeal is open to this court for the purpose of review upon the question indicated.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisoh, Black, Katzenbaoh, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — None.


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    Leo Lessler, trustee in bankruptcy of Jacob Goldstein, bankrupt, plaintiff-appellant, v. Paterson National Bank, a corporation, defendant-respondent.
    [Submitted October 30th, 1925.
    Decided February 1st, 1926.]
    On appeal from a decree advised by Vice-Chancellor Baekes, whose opinion is reported in 97 N. J. Eq. S96.

      Mr. William Harris, for the appellant.

      Mr. John W. Harding, for the respondent.
   Per Curiam.

Of the six grounds of challenge to the validity of the chattel mortgage brought in question in this case that were presented to the court of chancery, the first four are abandoned on this appeal, and, therefore, we have considered only the fifth, relating to the affidavit made by the president of the mortgagee corporation, and the sixth, charging that the affidavit does not truly state the amount due or to grow due on the mortgage. So far as the opinion deals with the above two questions that are presented to us, we are satisfied with the result reached by the learned vice-chancellor, and for the reasons stated by him in his opinion. The other grounds of attack on the mortgage have, of course, not been considered.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, McGlennon, Kays, Hetfield, JJ.- 15.

For reversal — None.


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    Clyde C. Marcy et al., appellants, v. Francis P. Larkin et ux., respondents.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery, where Yice-Chancellor Learning filed the following conclusions:
    “It is admitted by counsel for complainants and defendants, respectively, that prior to the foreclosure of the mortgage in the suit of Francis P. Larkin, complainant, against Ocean Beach Eealty Company and others, defendants, file number 49-408, complete and adequate searches of the public records were made in behalf of complainant prior to the filing of the foreclosure bill, and that all parties were made defendants to said forclosure suit who were disclosed by the public records to have any right, title or interest in the mortgaged premises. That before the foreclosure bill was filed one Clyde G. Marcy, one of the complainants in the present suit, held written contracts for the purchase of a part of the mortgaged premises executed by a former owner thereof (as being the grantee of the mortgagor), which contracts were not acknowledged or proved, recorded, registered or filed in the office of the clerk of Ocean county where the mortgaged premises were situated.
    “It is contended by the complainants in this suit that, by reason of the fact that the said contracts were not acknowledged or proved, the contracts cannot be recorded, registered or filed, hence were not contracts of the nature referred to by the fifty-eighth section of our Chancery act, and it is further contended by complainants in this suit that before the bill was filed the mortgagee-complainant in the foreclosure suit had knowledge of the possession of the complainant in this suit of the lots covered by said contracts of sale, or had knowledge of facts which should have apprised him of the existence of said contract.
    “The determination of this court is that it is immaterial ’ whether the contracts of sale were acknowledged or proven or not, and immaterial whether the mortgagee in the foreclosure suit had actual or constructive knowledge before the bill was filed of the possession of the complainant in the present suit of the lots covered by the contracts of purchase, or of the actual existence of the contracts of sale after the bill was filed, for the reason that, in the opinion of this court, the statute is intended to perfect the title at foreclosure in accordance with the public records as such public records disclose the existence of liens and encumbrances, and to forever protect the title made under the sheriff’s sale as against any liens not disclosed by the public records, and the court therefore declines to entertain the testimony in behalf of the complainant in this suit to the effect that complainant was in possession of the lots covered by the contracts at the time the foreclosure was brought. The court also declines to receive evidence on the part of the complainant in this suit to the effect that he stated to the mortgagee after the bill was filed, and prior to the sale under the foreclosure decree, that he held the contracts that are now subject of this suit, and said to him that he was in possession of the premises.

      “It is therefore apparent that, since it is admitted that this suit seeks relief only against the part of the mortgaged premises covered by these contracts of sale, no relief can be awarded if the fifty-eighth section of the Chancery act is construed, as this court now construes it, to bar relief against the mortgaged premises after title has been conferred at the foreclosure sale in accordance with the provisions of that section of the statute.
    “The court will therefore advise a decree dismissing the bill.”

      Messrs. Blealdy, Btochwell & Burling, for the appellants.

      Mr. Howard Bwart, 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 Learning.

For a-ffirmance — The Chiee-Justice, Trenchabd, Parker, Minturn, Kalisch, Black, Katzenbaoh, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


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    The Sarco Company of New Jersey, respondent, v. Alta R. Gulliver, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in S N. J. Mis. R. 6J/.1.

      Mr. Sol Phillips Perlman, for the respondent.

      Mr. Aaron V. Dawes, 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 Buchanan.

For affirmance — The Chiee-Justice, Teenchaed, Pakkek, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, Gaednee, Van Buskibk, McGlennon, Kays, Het-EIELD, JJ. 14.

For reversal — None.


text:
    South Jersey Furniture Corporation et al., respondents. v. William T. Dorsey et al., appellants.
    On appeal from a decree of the court of chancery1 advised by Vice-Chancellor Ingersoll, whose opinion is reported in 95 N. J. Eq. 580.

      Mr. Elmer Brown, Jr.,. Messrs. Moore & Butter and Mr. Patríele H. Harding, for the respondents.

      Messrs. Endicoit & Endicoit and Mr. Richard J. Mackey, for the appellants.
   Per Curiam.

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

For ajfirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — None.


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    David Towbin et al., respondents, v. Bella Pierro et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, whose opinion is reported in 97 N. J. Eq. 258.

      Messrs. Eichmann & Seiden, for the respondents.

      Mr. David H. Sterner, for the appellants.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Teenchard, Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


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    Westfield Trust Company et al., appellants, v. Charles K. Beekman, executor, &c., respondent.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised hy Vice-Chancellor Eielder, whose opinion is reported in 97 N. J. Eq. HO.

      Mr. Marie Townsend, Jr., for the appellants.

      Messrs. Pitney, Hardin & Shinner, for the respondent.
   Per Curiam.

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

For affirmance — The Chief-Justice, Teenchabd, Mintuen, Kalisch, Black, Katzenbach, Campbell, .Lloyd, White, Van Buskiek, McGlennon, Kays, Hetfield, JJ. 13.

For reversal — None.