text:
    In re estate of Wicko Sinovcic, deceased.
    [Submitted March 25th, 1912.
    Decided June 20th, 1912.]
    1. The consul-general of Austria-Hungary has the right to join- in an appeal from a surrogate’s order improperly granting administration .upon a decedent’s estate to decedent’s cousin, where both the decedent and liis next of kin, who is his father, are citizens of that country.
    2. Rules 1 and 2 of the brphans court made by the Ordinary pursuant to section 4 of the Orphans Court act (P. L. 1898 p. 788), relating to the application for administration, renunciation, request, and proof of notice, are as binding as the statute, must he complied with, and a valid grant of administration cannot be made without such compliance.
    3. Evidence examined, and held, insufficient to support the contention that the next of kin had ratified the appointment of decedent’s cousin as administrator.
    4. The next of kin being a foreigner, living in Austria, letters of administration upon decedent’s estate should be granted to the consul-general, conformably with the statutes of this state.
    On appeal from a decree of the prerogative c-onrt affirming a decree of the orphans court of Camden county, wherein Judge Joline delivered the following opinion':
    Wicko Sinoveic, a citizen of Austria-Hungary, died intestate in Camden, in this state, on the 11th day of February, 1909. His next of kin was his father, Jerie (or Jerolimo) Sinoveic, residing in Solta, Austria, hi this country his nearest relative was Anton Clarich, a cousin. Upon the request.of this cousin, who had a letter from the- father which, it is claimed, authorized him to act, Gasper J. Herzich, no application having previously been made by anyone, applied to the surrogate of Camden county, on August 16th, 1909, for letters of administration upon the estate of said decedent, and they were issued upon the same day. Erom the order granting these letters this appeal is taken by Jerolimo Sinoveic, the father of Wicko, and by Alexander de Huber, “Imperial and Eoval Austro-Hungarian Consul General.”
    The'right of the latter to appeal is based upon article 15 of the. consular convention between the United. States of America and Austria-Hungary, concluded July 11th, 1870, and proclaimed June 29th, 1871, and upon article 9 of the Treaty of Friendship, Commerce and Navigation between the United States and the Argentine Republic, signed July 27th, 1853, and proclaimed April 9 th, 1855.
    The former declares that, among others, • consuls-general shall enjoj" in the two'countries all the liberties, prerogatives, immunities and privileges granted to functionaries of the same class of the most favored nation.
    The latter declares that
    “if any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.”
    It appears that on March 30th, 1909, an exequatur was issued by the department of state of the United States of America to the said Alexander de Huber, as consul-general of Austria-Hungary, at Hew York.
    I think that the said consul-general has the right to intervene in this proceeding. The fifteenth article of the Austria-Hungary treaty confers upon him the rights enumerated in the ninth article of the Argentine Republic treat3r, and, among others, the right to intervene conformably with the laws of the country, for the benefit of creditors and legal heirs, in the administration of the estate of a decedent, a citizen of Austria-Hungary, _ dying without will or testament in this country. It cannot be successfulty urged that this does not apply to the grant of letters of administration {In re estate of Freccia, decerned. 27 N. J. L. J. (No. 12) 367), and I think it should apply as well to an appeal from an alleged improper grant of such letters. In any. event, the father joins in the appeal.
    The question then arises, ivas the grant of letters to Gasper J. Herzich legal ?
    The authority of the surrogate is found in the twenty-eighth section of the Orphans Court act, which is as follows:

      “Whenever any person has died, or shall die, intestate, within this state, and has left, or shall leave, no relations justly entitled to the administration of his personal estate, or if the next of kin of any such intestate has not claimed, or shall not claim, the administration within forty days after the death of such intestate, it shall be lawful for the ordinary or the surrogate to grant letters of administration on such decedent’s estate to any fit person or persons applying therefor.” P. L. 1898 p. 784.

    By rule I of the orphans court made by the Ordinary, pursuant to section 194-of the Orphans Court act {P. L. 1S9S p. 788), it is prescribed, inter alia, that
    “where application for administration is made by any person other than the next of kin or party first entitled, or by one of several equally entitled to receive letters of administration, the person making such application shall produce to the surrogate the renunciation and request of the persons so entitled, that letters be issued according to the application, or proof that at least ten days’ notice has been given to the next of kin or parties by law entitled to such administration, if any, of such application; which application, and the renunciation and request, if any, shall be recorded in a book to be kept for that person.”
    By rule 2 it is prescribed that if
    “the next of kin of any person dying intestate shall not apply for administration for forty days from the death of the intestate, the surrogate may grant letters testamentary or letters of administration, as the case may be, to any fit person who will accept the same, first giving at least ten days’ notice to the heirs, widow or next of kin of such deceased, or to those of them whose residence or address he can ascertain, of his intention so to do; which notice may be sent by mail, and a copy thereof shall be by him recorded upon the granting of such letters.”
    These rules are as binding as the statute, must be complied with, and a valid grant of administration cannot be made without such compliance. Gans v. Dabergott, 40 N. J. Eq. (13 Slew.) 184, 187; Sayre v. Sayre, 48 N. J. Eq. (3 Dick.) 267, 269.

    The next of kin of the decedent was his father, and it appears that as to him no requirement of either rules 1 or 2 was observed; there was no renunciation on his part or request by him that letters issue to Herzich or proof of ten days’ notice given to him of Herzich’s application as required by rule 1, nor was any notice mailed as required by rule 2. The father’s address was given by the applicant in his petition, and it cannot be asserted that it was not known.
    The rule of the surrogate that administration will not be committed to a non-resident cannot justify failure to comply with the requirements of the above rules.
    It was urged by the respondent that the letter which it was alleged the father of Wieko sent to Clarich, the cousin, justified the grant of letters to Herzich, but I cannot agree to this. There was no proof of the contents of that letter. It was alleged that Clarich sent it to the Austrian consul, and, upon demand being made for its production, Herzich, who testified that he saw the letter, but nowhere that he had read it, declared that neither of the letters produced was the one which Clarich had shown him. He did not testify as to its contents; the nearest that he came to it being in the early part of his cross-examination, when, having answered that lie had no request from Jerolimo Sinovcie that he be appointed administrator, and having further answered “Ho” to the question whether he had given Jerolimo any notice that he would apply to the surrogate to take charge of the estate, he added, “This here cousin of his, he got a letter to do it, then he” (no doubt meaning the cousin) “wanted me to take it for him, Anton Clarich.” It is probable that his sole knowledge of the contents of the alleged letter was the statement of Clarich. I am quite sure that it was not produced before the surrogate, and the evidence with regard to it is too uncertain, even were I convinced that it could have any bearing upon the case, for me to regard it. If Jerolimo wrote it and it contained the request that Clarich, should take charge ■ of Wicko’s estate, its production would not justify the granting of letters to Herzich, for the rule of the court is that the request must be that letters be issued to the applicant, in this instance, to Herzich. If the letter was a warrant for Clarich to take charge of the estate, it surely was not a warrant for him to have any person he might fancy to take charge of it.
    On the part of the respondent, it was contended that Jerolimo Sinovcie had ratified the action and conduct of the administrator, and that he and the consul-general are thereby precluded from appealing from the grant of letters. In support of this contention the administrator relies upon certain letters lately received from Jerolimo.
    Wicko’s death was caused by reason of injuries sustained while working for the New York Shipbuilding Company, in its yard at Camden, and .L think it fairly inferable, from' the evidence that Clarich approached his friend Herzich to go with him to the company to make some sort of a settlement, that the company agreed to settle, and that Clarich, Herzich and Clinton C. Garrett, an employe of the company, went to the surrogate’s office where letters were issued to -Herzich; that the settlement was made; that Herzich eventually sent, or agreed to send, to Jerolimo $471 thereof, and that the letters from Jerolimo were in reference thereto. In one he writes, “I am perfectly satisfied -what you have done for my dead, son, Wicko Sinovcic. Everything is all right for me and for my wife.” I give the translation by the •witness Gavanstey. This, of course, relates to the settlement, the fairness and justice whereof is a matter of no concern at this time. It may have been just and fair, it may not have been. The contents of the letter from Herzich, in response to which Jerolimo wrote the above, are not known to the court. Jerolimo may not have known that Herzich was administrator, and may have thought that, acting as a friend, he had secured this money. 'I do not feel free to regard this letter as a ratification of Herzich’s appointment as administrator, or, at the best, to regard it as more •than satisfaction at the receipt of the $471, collected by Herzich, and his action in that respect. I cannot construe it as a ratification of this appointment as administrator. There was some doubt as to tire translation of a certain portion of Jerolimo’s letter; Herzich at first translated it. “Here I send you letter like you did write to me,” and later, when a witness named Gavansky translated it, “I send you a letter answer to your letter,-” adopted the Liter version. He subsequently testified that he had not written to Jerolimo just what he was to say, but the matter is somewhat involved, and could have been cleared up by the production of a copy of Herzich’s letter. Herzich may not have written him just what to write in response, still he may have asked him whether he regarded the settlement as satisfactory, and that may have called forth the answer. I am not free to interpret this letter other than as I have heretofore stated.
    My conclusion, therefore, is that the grant of letters to Herzich was without warrant in law, and that the same should he revoked.
    The petition of appeal praj's that letters of administration may be granted to the petitioners, or to one of them, or to some other fit or proper person. The petitioners are Jerolimo Sinovcie' and Alexander de Súber, the consul-general. Jerolimo is a foreigner, living in Austria, and, of course, it would be improper to grant them to him. I can see no réason why they should not he granted to the consul-general conformably with the statutes of this state. I will, therefore, sign an order directing his appointment upon Ms executing a bond with approved security in the sum of $2,000.

      Messrs. GasTeill & Gaskill, for the appellant.
    .Messrs. Wilson & Carr, for the respondent.
   Per Curiam.

The decree appealed from will he affirmed for the reasons stated in the opinion filed in -the Camden county orphans court by Judge Joline.

For affirmance—The Ciuee-Justice, Garrison, Swayze, Tbenchaed, Parker, Bergen, Voorhees, Minturn, Kalisci-i, Bogert, Yredenburgh, Yroom, Congdon, White, Treacy—15.

For reversal—None.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Edwin Kobert Walker, Chancellor.
    John K. Emery, Frederic W. Stevens, Eugene Stevenson, Lindley M. Garrison, Edmund B. Beaming, James E. Howell and Vivian M. Lewis, Vice-Chancellors.
    Hudson Trust Company v. Frank O. Boyd and Vinnie Boyd, his wife.
    [Decided September 5th, 1912.]
    1. The court of chancery is a court of record; its records are perpetual memorials; they will not be opened and vacated without sufficient cause even upon application of the parties; a decree is pleadable in bar of another suit between the same parties for the same cause; and, while a suit until decree is under the control of complainant and may be dismissed, with or without notice and costs accordingly as the defendant has or has not appeared and answered, nevertheless, after decree the proceedings are under the control of the court and will only be opened to let in a defence, prevent fraud or mistake, or otherwise further the ends of justice, and this whether the proceedings and decree have been enrolled or not, a decree being efficacious to all intents and purposes as soon as it is made; after decree in order to effectuate a settlement by the parties the proper practice is to stay proceedings and not to dismiss the bill;. a bill after decree will not be dismissed even with consent.
    2. Qucere. Is a decree in chancery of this state to be considered as of record before it is enrolled?
    3. Qucere. By the opening and vacation of a decree into which a debt formerly existing by specialty has been merged and thereby became a debt of record, would the debt by specialty, namely, the mortgage, thereby be revived?
    On motion to open final decree, vacate enrollment and dismiss complainant’s bill.

      Messrs. Smith, Mobon & Herr, for the motion.
   Walker, Chancellor.

This is an orderly foreclosure suit in which for want of appearance and answer by defendants a decree pro confesso and final decree was made and filed July I9th, 1912. The proceedings have been enrolled.

Complainant’s solicitors have sent to the clerk an order to open the final decree, vacate the enrollment and dismiss the bill, “without costs and without prejudice,” and it has been presented to me for signature. The “without costs,” of course, means without costs against the complainant, because upon its application the clerk has already taxed a bill of costs in favor of the complainant and against the defendants in the sum of $91.68, and that sum was included in the execution which was issued and has been returned with the following endorsement: “The within execution is returned.into court never having been delivered to the sheriff. Smith, Mahon & Herr, solrs. of cornplt.” The “without prejudice” obviously means without prejudice to another foreclosure of the same mortgage in event of a subsequent default by defendants.

The solicitors were notified to file a warrant of satisfaction and replied that they cannot do so because the decree has not been satisfied, but that an adjustment has been reached between the complainant and the defendants by which the interest has been paid and the mortgage is to be continued. They are silent on the question of costs of foreclosure, but I assume they have been paid or secured.

blow, the mortgage is very effectually continued when merged into a decree of foreclosure, which can be enforced by execution at any time within twenty years (on notice to defendant after the lapse of six years), and, under the terms of the decree, the defendants are not foreclosed of the equity of redemption until the premises are actually sold by virtue thereof.

In fact when merged into a decree the debt which before was one by specialty becomes one of record. A debt of record, says Blackstone, is a contract of jhe highest nature, being established by the sentence of a court of judicature. 2 Bl. Com. 465. A debt of record is a sum oi^money which appears to be due by the evidence of a court of record.. 2 Words & Phrases 1891. See, also, New Jersey Insurance Co. v. Meeker, 37 N. J. Law (8 Vr.) 282, 301. A judgment debt is one which is evidenced by matter of record. Bouv. Dict. (Rawle's rev.) 513. A debt by specialty is a sum .of -money due or acknowledged to be due by deed or instrument under seal. 2 Bl. Com. 465.

I am aware that the practice here sought to be put in force has obtained to some extent in the court. Solicitors have sent in similar orders and they have gone through pro forma. There is, however, no warrant for such practice and it will be discontinued.

A suit until a decree entered is under the control of the complainant, and before answer filed he may dismiss his hill at any time without payment of costs, but after an answer has been put in the bill can only be dismissed upon notice and payment of costs. Corb. N. J. Cl. Rules 144; Chancery rule 15a, and cases cited. See, also, Dick. Ch. Prec. (revised ed.) 140, note a.

After decree the proceedings are under the control of the court, and will only be opened in order to prevent fraud or mistake. Consolidated Electric Storage Co. v. Atlantic Trust Co., 50 N. J. Eq. (5 Dick.) 93.

As I understand it, the court will not for any cause vacate the enrollment and open a decree regularly made except to let in a defence. Brinkerhoff v. Franklin, 21 N. J. Eq. (6 C. E. Gr.) 334, 336; Cawley v. Leonard, 28 N. J. Eq. (1 Stew.) 467.

The court of errors and appeals, in Day v. Allaire, 31 N. J. Eq. (4 Stew.) 303, observed (at p. 315) that “the court of chancery has discretionary^ power, even after enrollment, to open a regular decree obtained by default, for the purpose of giving the defendant an opportunity to make a defence on the merits, where he has been deprived of such defence, either by mistake or accident, or by the negligence of his solicitor.”

Decrees, as I understand it, are only opened for specified and limited purposes, remaining in existence and efficacy for all other purposes. What the complainant here desires to do is to vacate, and therefore practically annihilate the whole record. If that were done what its effect would be upon the debt due to the complainant I am not prepared to say. It suggests this inquiry: By the opening and vacation of a decree into which a debt formerly existing by specialty has been merged and thereby become a debt of record, would the debt by specialty, namely, the mortgage, thereby be revived?

It here becomes of some importance to ascertain the difference, if any, between a decree filed and one enrolled.

In England a decree in chancery does not, strictly speaking, become a record of the court until it has been enrolled. Dan. Ch. Pl. & Pr. *1018. An enrolled decree is pleadable and can only be reversed, altered or explained upon appeal to the house of lords or upon a bill of review. Ibid. *1024. A party wishing to have it reheard must take steps to prevent enrollment by caveating against it. Ibid.

Our practice■ appears to be different, and with us ah enrolled decree may be amended in this court in a proper case without a bill of review or a rehearing. Lynde v. Lynde, 54 N. J. Eq. (9 Dick.) 473.

In the Lynde Case the alteration of the decree was sought by the complainant. In most cases it is sought by the defendant. In all eases application therefor is only considered upon notice and an opportunity afforded the adverse party to be heard.

In England, until a decree has been enrolled and thereby becomes a record, it may be altered by the court that made it upon a rehearing; but an enrolled decree is not susceptible of such alteration except* by the house of lord's on appeal, or by a bill of review. Dan. Ch. Pl. & Pr. *1019. A decree which has not been enrolled; although it is final, is considered merely interlocutory and cannot be pleaded in bar of another suit for the same matter. Ibid. *1019. Eo appeal lies to the house of lords against a decree ox order in chancery until it has been enrolled. Ibid. *1492.

Our Chancery act provides, in section 39 (1 Comp. Stat. p. 425), that when any cause shall be finally determined, except where a suit, bill or proceeding shall be dismissed by consent, the clerk shall enroll the proceedings and decree; and in section 41, that the clerk shall make the enrollment so that the record may be ready for the chancellor’s signature within three months after the filing of the decree.

Rule 101 of our court provides that no final decree shall be enrolled until the expiration of ten days, unless its form has been settled by the chancellor or vice-chancellor upon proper application, nor the enrollment signed by the chancellor within that time without special order; and rule 102, that every party who may be affected by any order or decree not settled by the chancellor or vice-chancellor upon application, shall be held to have waived all objection to the form thereof, unless he file his objection within ten days of the filing of the order or decree.

By direction of Chancellor Williamson, April 2d, 1827, it was provided:

“Decrees shall be enrolled in all cases where a decree has been gendered, or an order of dismissal had, or any order in the nature of a decree which determines the suit, whether such suit concerns real or only personal estate.” Extract from clerk's book, Nix. Dig. 239.

Our constitution establishes the court of chancery in this state, and, therefore, our decree in chancery, its enrollment and effect, are the same as those of its English prototype, except as altered by our statute and rules of court, and, I presume, by general practice also.

Thus the decree of our court is not of record until it -is enrolled, unless our Chancery act or some rule of court makes it so. I am unable to find any statute or rule which in terms makes a decree of record without enrollment. While in» England, as already shown, a decree cannot be appealed from unless it is of record; nevertheless, by virtue of our Chancery act, section 111 (Comp. Stat. p. 450), provision is made that an appeal from a fiiral decree shall be taken within one year “after making such decree.” This, of course, is entirely exclusive of any enrollment, as the clerk has three months- within which to make up that record; and, besides, if the statutory provision was that an appeal should lie from an enrolled decree only, it would have so stated. Furthermore, our decrees become effective immediately upon their being signed, and they-may be enforced by execution, subject to rules and practice, without waiting for any enrollment. See rule 149.

While these provisions do not make a decree “of record” before enrollment, they show that a decree with us from the time of its being made, and before enrollment, has all of the force and effect that a similar decree has in England as well after as before it is enrolled. Whether in view of our statutory provisions and rules of court a decree is to be considered as of record before it is enrolled, is a question that does not now call for decision, nor is it here decided. It is in any aspect immaterial.

The court of chancery of this state is certainly a court of record. It comes within Blackstone’s definition- of such a court. He says:

“A court oí record is that where the acts and judicial proceedings are enrolled on parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, bo admitted to the contrary. And if the existence of a record be denied, it shall be tried by ' nothing but itself; that is. upon bare inspection whether there be any such record or not; else there would be no end of disputes. But, if there appear any mistake of the clerk in making up such a record, the court will direct him to amend it. All courts of record are the king’s courts, in right of his crown and royal dignity, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record. A court not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courts-baron incident to every manor, and other inferior jurisdictions; where the- proceedings are not enrolled or recorded ; but as well their existence as the truth of' the matters therein contained shall, if disputed, be tried and determined by a jury.” 3 Bl. Com. 24.

This court will jealously guard its records and will see to it that they are only opened and vacated when the ends of justice require it. They will never be opened for insufficient cause even upon application of the parties. '

A final1 decree of this court when made and filed is certainly as much of a judgment as is a final judgment of a court of common law a judgment of such court. It is so provided in tlia Chancery act. Comp. Stat. p. 425 § 44.

While there are marked distinctions between judgments of courts of law and decrees of courts of equity, nevertheless, in. fact, the final decree of a court of equity is now often alluded to as its judgment, the word “judgment” being used as synonymous, whether applied to a decree in chancery or a judgment at 'law. Bouv. Dict. (Rawle's rev.) 521.

"A decree of this court is a judgment from its date.” Hazen v. Durling, 2 N. J. Eq. (1 Gr. Ch.) 133 (citing 4 Johns. Ch. 625).

A decree for alimony or support is as much a judgment as if it hacl been obtained in a common law court. Bennett v. Bennett, 62 N. J. Eq. (18 Dick.) 306, 308.

The supreme court of this state, in Heckscher v. Middleton, 54 N. J. Law (25 Vr.) 312, held that a judgment entered upon a cognovit will not be opened because of a verbal promise alleged to have been made at the time of giving the cognovit that the judgment would never be enforced. In that case Judge Reed, speaking for the supreme court, said:

“It ivas a common practice to enter into an agreement at the time of confessing the judgment, by which the defendant should have time or terms of payment. This agreement was made as a part of the cognovit. The court would then see that the terms were performed. 1 Tidd 560.

“No ease can be found, I am sure, in which the agreement was that the judgment confessed should be a nullity, as in this case.”

The case under consideration is somewhat analogous to that of Heclcsher v. Middleton. In that case, because at the time of giving a cognovit the defendant was promised that judgment would not be enforced against him, which promise was violated by the issuance of an execution, the defendant moved to open the judgment and to be allowed to plead to the action. In this case a final decree by default has been entered against the defendants; and now, upon the representation by the complainant’s solicitors that an adjustment has been made between the parties whereby the mortgage is to be continued, it is moved in 'effect that a decree thus entered should be treated as a nullity, as was agreed in reference to the judgment in the Hecksher Case.

A decree of this court may be rendered null only in favor of the party against whom it is entered, and then only by filing a warrant of satisfaction in case the decree is for the payment of money as on foreclosure or for some other cause for relief, or by entering an order for satisfaction where the decree is one enjoining the performance of specified acts, and not by opening the decree, vacating the enrollment and dismissing the bill. Such a proceeding would be entirely anomalous, unless for the purpose of letting in a defence. See the forms of warrant for satisfaction and order for satisfaction of decrees in Dick, Ch. Prec. Supp. (1911) 183, and notes a and b.

As already stated, the complainant’s solicitors in the matter sub judice represent to the court that the decree has not been satisfied, but that an adjustment has been made whereby the mortgage is to be continued. Now, the defendants can be amply protected on this adjustment by a written undertaking from the complainant or its solicitors, and if the complainant should violate the agreement, the court, on application, will protect the defendants and see to it that the terms are performed. See Hecksher v. Middleton, ubi supra.

The defendants are not here asking to have this record nullified , and if such action should be taken in their absence and without their knowledge, and if the mortgage, which is the basis of this suit, should be again foreclosed upon a subsequent default, and the defendants should plead a former recovery and decree against them to save themselves the vexation of another foreclosure and the payment of a second bill of costs, I opine they would be astonished by a reply of nul tiel record by complainants. I am unwilling to put them in this possible dilemma.

■ The proper practice after final decree to effectuate any settlement arrived at between the parties is to stay proceedings and not to dismiss the bill. Several English cases so decide. I think it is the only allowable practice.

In Lashley v. Hogg, 11 Ves. 602, Lord Chancellor Eldon held that after decree the bill cannot be dismissed by consent; but an arrangement for disposing of the fund may have effect on farther directions.

In Bluck v. Colnaghi, 9 Sim. 411, Vice-Chancellor Shadwell held that after a decree or decretal order, not directing inquiries merely, has been made, the bill cannot be dismissed.

In Egg v. Devey, 11 Beav. 221, Lord LangdaJe, master of the rolls, held that after decree for an account the bill cannot be dismissed even with consent; but the proper order is to stay all the proceedings.

The above views lead to these conclusions: The court of chancery is a court of record; its records are perpetual memorials-; they will not be opened and vacated without sufficient cause even upon application of the parties; a decree*is pleadable in bar of another suit between the same parties for the same cause; and, while a suit -until decree is under the control of complainant and may be dismissed, with or without notice and costs 'accordingly as the defendant has or has not appeared and answered, nevertheless, after decree the proceedings are under the control of the court and will only be opened to let in a defence, prevent fraud or mistake, or otherwise further the ends of justice, and this whether the proceedings and decree have been enrolled or not, a decree being efficacious to all intents and purposes as soon as it is made; after decree, in order to effectuate a settlement by the parties, the proper practice is to stay proceedings and not to dismiss the bill; a bill after decree will not be dismissed even with consent.

The pending motion must be denied.


author: Emery, V. C.

text:
    Henry S. Howland v. Pauline F. Andrus.
    [Decided June 18th, 1912.]
    1. Where a covenant on the part of a grantor, as to restrictions to be inserted in deeds of adjoining lots, was part of the consideration for the grantee’s deed and was intended to impose a burden on all lots for the benefit of all, equity will restrain its violation, not only against the grantor-covenantor, but also against all subsequent purchasers with notice of the covenant.
    2. P. L. 1908 p. 1/89 § 1, provides for the recording of all instruments in anywise affecting the title to any lands, tenements or hereditaments, and section 2 provides that the provisions of the Conveyance act shall apply' to-snch instruments. Conveyance act (P. L. 1898 p. 690 § 53) provides that, as to instruments authorized' to be recorded, the record shall thereafter be notice to all subsequent purchasers of the execution of the deed or instrument and its contents.—Held, that a purchaser of a lot liad constructive notice of an agreement of her grantor, contained in a recorded grant of another lot in the same parcel, that no house should be built on any lot sold therein whose front was nearer than a given distance from the street on which the lots fronted.
    3. One covenant in a deed restricted the grantee from locating his dwelling nearer than sixty feet to a certain street, while another bound (lie grantor not to convey any adjoining lots “except by a deed containing the same restrictions as above recited.” A conveyance of lots located at the comer of the street, on • which the first grantee’s lot fronted, and another street, contained no restriction on the right of the grantee to -build with respect to the first street.—Held, that the agreement with the first grantee referred to the first street, and, although the second purchaser’s house faced the cross street, the side of it must be held to be the front, line intended by the covenant, so as to preclude its being built within sixty feet.
    4. Though an owner of property, holding under a deed containing a restrictive building covenant, built his house with the' second story overhanging a piazza which extended four feet over the building line fixed, it would, not so substantially affect the beneficial effect and operation of the covenant as to preclude such owner from enforcing it against purchasers of adjoining lots with notice of the .location before their purchase.
    5. And where the builder located his house as lie did with the consent of his grantor, the original owner of all the property, and as a substantial compliance with the restriction, one subsequently purchasing adjoining lots from such grantor may not treat the location as made without agreement and in the assertion of independent adverse rights under or in violation of the covenant, but is bound by the consent given.
    6. An owner 'of property is not estopped by laches to enforce a restrictive building covenant against an owner of adjoining property where he objected to the erection of the building as soon as its proposed location was brought to his attention, and any delay in filing a bill for an injunction was caused by a neighborly agreement that work on the building would not be commenced until the controversy over the location was settled; the conduct and statements of the builder and his agents showing that he proceeded with the work at his own risk.
    Heard on bill, answer, replication and proofs. .
    Tbis suit is brought to enforce a building line restriction in a suburban residential district of the town of Montclair. Joseph Bardsley, the owner of a tract of land tying between Park street on the east and Valley road and Horth View avenue on the west, about nine hundred feet-in length by five hundred feet in width, laid out the land in building lots, with a street called Wildwood avenue, fifty-five feet in width through the middle of the tract from east to west. Tbis avenue was conveyed to the town by Bardsley and his grantees by a deed dedicating it as a public street. The deed was dated June 1st, 1903, duly recorded, and referred to a map attached, which showed the lots located on both the northerly and southerly sides of the avenue. The lots, except the corner lots, fronted one hundred feet on Wildwood avenue, and most of them rvere about two hundred and twenty feet in depth. The entire tract had been laid out in building lots by Bardsley before the dedication, and previous thereto, one lot on the north side of Wildwood avenue had been sold to Mr. Mead in 1901,- and one on the south side to Mr. Grout in 1902. Mead and Grout joined in the dedication deed. The lots in the tract were put on the market for sale as fully restricted by Mr. Bardsley personalty and through his agents, and also by a sign on the property near the Valley road. The full restrictions inserted in the Mead and Grout deeds were covenants, on the part of the grantees—first, that the.property should be used for residential purposes only; second, that not more than one dwelling should be erected on the lot; third, that the cost of the dwelling should not be less than $6,000 (on Mead’s lot) and $8,000 (on Grout’s); fourth, that the dwelling should be so located that the front line thereof shall not be nearer than sixty feet to the street measured at right angles thereto; fifth, that the front line of any outbuilding erected should not be nearer the street line than the near line of the dwelling. These covenants and agreements were to run with the land and be in force for twenty-five years.
    Upon the lot purchased by^ Grout a house had been erected by Bardsley himself previous to the purchase, the front line of which was .approximately sixty feet from the street line of Wildwood avenue.
    After the dedication of the avenue, and in 1905, Bardsley convej'éd to one Bruggeman a lot on the north side of Wildwood avenue adjoining Mead’s lot on the west, with the same covenants on the part of the grantee, except that the building cost was increased to $9,000. These lots of Grout, Mead and Bruggeman fronted only on Wildwood avenue, and upon their .deeds no, question could arise as to the street referred to in the restriction. Complainant was the next purchaser in March, 1906, and at that time both Mead and Bruggeman had erected on their respective lots dwellings complying with the restrictions, and complainant purchased a lot on the south side of Wildwood avenue fronting only thereon. This lot on its easterly side adjoined the corner lots at the southwest corner of Park street and Wildwood avenue and was distant from Park street about two hundred feet. The lines of Park street and the avenue form an acute angle, and on the avenue complainant’s lot is about two hundred and eight feet from Park street, while at the rear it is one hundred and ninety-two feet. This fact is important, because defendant’s house has been built on the corner lot parallel with Park street and not with Wildwood avenue. On the map attached to the dedication the corner lots both on the northwest and southwest corner of Park street and Wildwood avenue were laid out as fronting on Park street and abutted on the adjoining Wildwood avenue lots. Complainant, previous to his purchase of his abutting lot, had not actually seen the map, but knew, as he says, that the corner lots fronted on Park street. He first contemplated, as he says, the purchase of the two corner lots instead of the lot abutting on them, and during negotiations on this basis was informed by Mr. Bardsley that the building to be erected on the corner lots was to be sixty feet back from Wildwood avenue. On concluding to purchase the abutting lot complainant required, as he says, some protection by a restriction on the corner lots, and Bardsley, by a letter of March 14th, 1906, stated that he had instructed the insertion of a clause in the deed “to the effect that the adjoining plots will be restricted in the same manner as yours.” On March 16th, 1906, Bardsley conveyed to complainant his lot fronting one hundred feet on Wildwood avenue by a deed containing the same restrictions ipssissimis verbis as all the previous deeds, the building cost being $9,000. This further special covenant follows on the part of the grantor, and its precise form is important because of the correction of the original draft which is noted before execution:
    “And the parties of the first part hereby agree that they will not convey any of the adjoining lots, except by a deed containing the same restrictions as above recited.”
    This interlineation and the erasures were noted by the attorney of the title company who received instructions to draw the deed and who witnessed the deed. Complainant, after the purchase, erected at once a dwelling, locating its front line approximately sixty feet from Wildwood avenue, and after an approval as to location by Grout, his neighbor on the west, and Bardsley, the then owner of the lots adjoining on both sides. In the following month, Grout purchased the vacant lot lying between complainant and his own lot, with the usual restrictions. Grout still owns this lot and it forms part of his residence property of two hundred feet frontage on the avenue. In September, 1907, the lot on the north side of Wildwood avenue opposite complainant’s and abutting on the corner lots on the north corner of Park street and the avenue, was sold to a Mr. Ludlow, and in May, 1909, and February, 1910, lots on the north side of the avenue were sold to Yaux and Betts, with the usual restrictions. On December 17th, 1909, occurred.the first sale of any of the'corner lots, located on Park street, when Bardsley conveyed to Mr. Hubbard the lot on the northwest corner and described as fronting one hundred and seventeen feet on Park street and one hundred and eighty-five feet on Wildwood avenue. In this deed the building is restricted to dwellings, but the restriction of the building line was "not less than fifty feet from Park street or thirty feet from Wildwood avenue.” No dwelling has been erected on the Hubbard corner lot. The defendant, Mrs.' Andrus, on October 1st, 1910, purchased the tract on the southwest corner of Park street and Wildwood avenue, fronting about two hundred and twenty-six feet on Park street and two hundred and eight feet on Wild-wood avenue. This comprised the two corner lots shown on the map, but the description conveys as a single lot, and without any reference to the map. The restrictions are—first, that no more than two one-family private dwellings • costing not less than $9,000 each'are to be placed on the tract; second, the house to face, on Park street on lots having a frontage of not less than one hundred feet; third, the front foundation walls of said dwellings to be at least fifty feet from the -westerly side of Park street; fourth, the outbuildings to be next the southerly line of each lot and xxo nearer Park street than the rear line of the dwelling. No restriction as to distance from the Wildwood avenue line is made. No restrictive covenants on the part of the grantor are contained in the deed, nor was there in this deed or in any other of the grantor’s deeds except the deed to the town of Montclair any reference to the map referred to in the town deed. The conveyan.ee to complainant, containing the grantor’s covenant as to resti’ictions to be ¡out in the deeds for adjoining lots, was recorded oxx March 19th, 1906, and as defendant’s actual notice of this covenant is denied, and has not been proved by the complainant, the deed is relied on as constructive notice. The husband of defendant, who acted as her agent in the purchase of the lot, admits that from passing through the avenue he knew in a general way that the Wildwood avenue houses were oxx a lixxe at a uniform distance from the avenue, but says that he had xio actual knowledge of the covenant in Qomplainant’s deed in reference to restrictions on adjoining lots until about April 10th, 1911, after he had located defendant’s house and commenced its construction. Defendant’s house, a'building about sixty feet front by thirty feet deep, with axx extension of about seventeen feet, is located parallel with Park street and not Wild-wood avenue, and seventy-five feet distant from Park street; the north line of the house, as located, is forty feet only from Wildwood avenue on its easterly end, and thirty-six feet at the westerly end, Park street and Wildwood avenue making an acute angle.
    The substantia] questions in the case raised by the defence, as to the operation and effect of the restrictive covenant in the complainant’s deed, are—first, that the covenant is purely a personal covenant of the grantor, and neither runs with defendant’s land at law nor creates a burden thereon in equity; second, that the covenant in complainant’s deed strictly construed, as it is claimed it must be, applies, so far as the corner lot is concerned, to a frontage of the house on Park street and not on Wildwood avenue. As further defences to the issuance of an injunction, if the covenant should be held to impose an equitable restriction on her lot, defendant sets up—first, complainant’s own violation of the restriction as to the building line, by the erection of his own house nearer than sixty feet, and second, laches in application for the injunction.

      Mr. Borden I). Whiting, for the complainant (Messrs. Sommer, QoTby & Whiting, solicitors).

      Mr. BdvAn B. Qoodell and Mr. John B. Hardin, for the defendant.
   Emery, V. C.

(after statement of facts and issues).

The covenant on the part of the grantor as to the.restrictions to be inserted in deeds of “adjoining lots” was part of the consideration for the complainant’s deed. The restrictions upon complainant’s lots were imposed by way of benefit to the adjoining lots of the grantor and for the purpose of carrying out a general plan as to lots fronting on Wildwood avenue. They were declared to run with the lands conveyed, and the covenant as to similar restrictions on the adjoining lots was intended to be of the same character as attaching a burden on the land and to run with the land, and not to be merely personal to the' grantor.

And so far as purchasers with notice are concerned, the covenant is enforceable and must be considered as inserted in their deeds upon the fundamental principle that equit}r regards that as done which ought to be done. This principle is the general basis and origin of equitable estates and interests in lands arising out of executory contracts in relation thereto. 1 Pom. Eq. Jur. § 369. An executory covenant restricting the use of real property, operates by way of imposing an equitable burden on the property affected, as pointed out by Chief-Justice Beasley in Brewer v. Marshall (Court of Errors and Appeals, 1868), 19 N. J. Eq. (4 C. E. Gr.) 537, 544, and by Sir George Jessell in London & S. W. R. Co. v. Gomm (C. A., 1882), 20 Ch. Div. 562, 583; 3 Pom. Eq. Jur. § 1295, and notes. Purchasers acquiring legal title to the lands subsequent to a restrictive contract made by their grantor and with notice 'thereof hold the lands subject to the burden. Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Gr.) 206; Leaver v. Gorman (Vice-Chancellor Stevens, 1907), 73 N. J. Eq. (3 Buch.) 129, 131. By the act of 1903 (P. L. 1903 p. 489 § 1), all instruments of every kind in anywise affecting the title to lands, or containing any agreement in relation thereto, or granting any right or interest therein, were authorized tó be recorded,' and by section 2 the provisions of the Conveyance act (Revision of 1898) were extended to all such instruments. By the fifty-third section of the Conveyance act (Rev., P. L. 1898 p. 690), it was provided that as to instruments authorized to be recorded, the “record shall be thereafter notice to all subsequent purchasers of the execution of the deed or instrument and of its contents.” By force of this statute, defendant, as purchaser of a lot in reference to which the agreement was made, had constructive notice of the agreement of her grantor, relating to the covenant to be inserted in the deed for defendant’s lands. Whether the record of the agreement would have been constructive notice, if it had been contained in any deed or instrument executed by the grantor other than that of the lot adjoining defendant, it may not be necessary to determine, but, as it seems to me, defendant was bound to examine the record of the conveyances of adjoining lots, and is as much bound by agreements in reference to her lot benefiting these adjoining lots, as if the deeds for the latter had contained grants of legal easements, or covenants legally running with the land for the benefit of the adjoining lots.

. The evidence shows, I think, that as to lots fronting, or sold as fronting, on Wildwood avenue, there was a general plan of restricted building line adopted by the grantor and enforceable against him and all claiming under him, and by one grantee of lots fronting on the avenue against any other grantee, without regard to any express covenant on the grantor’s part in his deeds, but this evidence as to such general plan is not perhaps sufficient of itself to cover the corner lots as laid down on the map. But as no lots were sold by reference to the map, it was plainly within the power of the grantor to change the frontage of the corner lots, and by an express contract to make clear to an intending purchaser of an abutting lot, that the restriction as to Wildwood avenue did extend to the comer lot. And this was the object, I think, of his express covenant in complainant’s deed.

Assuming that the covenant in question affects defendant’s lands, it is next claimed on her behalf that the restrictive covenant properly construed would not apply to the line of her dwelling toward Wildwood avenue, but is a covenant applying to the front line of the building to be erected, which line is toward Park street. The agreement with complainant in reference to the adjoining lots was, that they should not be conveyed, “except by a deed containing the same restrictions as above recited,” i. e., as recited in complainant’s deed. Inasmuch as complainant’s lot fronted or bounded only on Wildwood avenue, this avenue must be the street referred to in complainant’s deed as the street from which the distance of sixty feet was to be measured. If, therefore, the deed conveying the adjoining lots contained the same restrictions as recited in complainant’s deed, they must necessarily, I think, apply at least to the line of the house measured from Wildwood avenue, and the language of the covenant, when inserted, should be such as to apply to Wildwood avenue. If the same restrictions as to distance of the front line from Wildwood avenue are to apply, then no part of this front line can be nearer than sixty feet, and this without regard to the street on which the house itself on the corner lots may front. Complainant’s deed would not, as I take it, prevent his building a house.bn his lot which fronted toward Park street, but no part of. the line of his dwelling which “fronts” to Wildwood avenue can be nearer than sixty Eeefc. For the purpose of the covenant the line, of the dwelling “fronting” toward the street from which the measurements are to be taken, is to be considered as the “front line” intended by the covenant, although this line might be in fact the side line of the dwelling.

On the merits of the case, therefore, and so far as relates to the question whether defendant’s lot is subject to the burden of the covenant restricting the distance from Wildwood avenue, the complainant’s case is made out.

Defendant further claims that the complainant is disentitled to the aid of a court of equity in enforcing the covenants by injunction, or otherwise, for two reasons—fir si, because he has himself violated the covenant by the erection of his dwelling four feet within the restricted line, and second, because of laches in his application for relief.

As to the erection of complainant’s dwelling, the facts proved are, that the dwelling fronts toward Wildwood avenue, the building being about sixty feet in width. The cellar or foundation wall of the entire front is on or back of the restricted line, but a terrace or piazza supported and enclosed by a solid wall three or four feet high extends about'ten feet beyond the cellar line'and is about thirty feet in length—one-half of the whole frontage of the house. This piazza or terrace is an open one, brit above it the second story of the house (being at this part about thirty feet in width) extends four feet beyond the sixty-foot line, and is about four feet nearer the street line than the cellar wall. This part of the dwelling projects over the rear portion of the open piazza and is supported by. four columns, which go through the piazza floor and rest oivpiers. The open piazza or terrace itself cannot, in my judgment, be considered as a portion of the front line of the. dwelling within the restricted line, but the second story projection is within the restricted line, and as to this the real question is, whether this violation of'the covenant by complainant is such as to disentitle him to any enforcement of the covenant whatever. The equitable rule applicable to the solution of the question is the general fundamental rule or maxim, that the complainnnt must come into court with clean haiids, or, as it is sometimes expressed, “He that hath committed inequity shall not have equity.” In determining whether the complainant is chargeable with such inequitable conduct as to disentitle him to enforce any rights whatever under a restrictive contract, the whole situation and circumstances as to the nature, burden and: object of the restrictive contract, and the extent to which the violation by the complainant affects the contract, must be considered as well as the circumstances of its violation. ’The denial of the remedy or relief upon the covenant is not a conclusion which follows necessarily upon the fact of complainant’s violation, but the denial of complainant’s right to equitable relief for protection of his equitable right depends on the whole circumstances of the case, as affecting his own equitable status.

The violation to have this effect must, I think, be such as to affect in a substantial manner the benefit to the adjoining lots, of the covenant imposed cn the complainant as part of the consideration of the grantor’s deed to complainant. Considering the manifest general object-of the covenant and the effect of this structure, this projection of the second story a few feet beyond the sixty-foot line does not, in my judgment, so substantially affect the beneficial effect and operation of complainant’s own covenant as to disentitle complainant to its enforcement against purchasers of the adjoining lots with notice of the location before their purchase.

There is a further reason why the complainant’s construction of his dwelling on these lines cannot be considered as -an inequity which deprives him of any relief on his grantor’s covenants.

It is proved that before locating and building his dwelling, he submitted the plans to his grantor, Mr. Bardsley, then still the owner of. the adjoining lots on both sides, and that Mr. Bardsley approved and consented to them as complying with the restrictions, and the dwelling was erected after such approval. This approval was proved, it is true, by parol evidence dehors the deed, and no evidence of defendant’s knowledge of it has been shown. But while this fact would be important as a defence if the application now were made to enforce against defendant a parol variation of the covenant in the deed of which defendant has construetive notice, it is not entitled to any decisive consideration, upon the precise 'question now to be solved, viz., whether the complainant’s location of the upper story of his dwelling a few feet within the restricted line is, on the whole circumstances of the case, such an inequity that he should be deprived of any equitable relief upon the covenants as to the adjoining lots. And in solving that question of complainant’s status, the conduct of the grantor, who then owned these adjoining lots, in approving the construction as a proper location of the line under the covenant, is vital and decisive.

Defendant’s contention is that this location, even if consented to by the grantor, had the effect ipso facto of relieving the adjoining lots from any burden of the covenants as to the restricted line, so far as they were imposed by the deed itself, and that any subsequent grantee without notice of the location by consent and with notice only of the restriction in the deed, holds the adjoining-lots free from any restriction as to the distance of the dwelling from Wildwood avenue merely because a portion of the dwelling is within the line.

In my judgment; the matter of the location of the dwelling on the line in this case was somewhat analogous to the location of a boundary, and locations of dwellings not being such as apparently and substantially affect the beneficial operation of the covenants, should not, as between subsequent purchasers claiming under the parties agreeing on the location, he treated as if made without agreement and under the assertion of independent adverse rights under the covenant, or in violation of it.

Defendant’s claim, that this location was a violation of the covenant, putting complainant in such an inequitable position as to disentitle him to enforce the covenant in equity, is therefore fairly met, I think, on the proofs with the answer that the location was 'agreed on by-the parties then interested, as a substantial compliance with the restriction, and with the object of substantially complying with it and securing its benefits to the adjoining lots. The objection of laches on the part of the complainant in applying for relief is not well founded, and for two reasons—first, there was in fact no unreasonable delay. Complainant objected to the erection of the defendant’s dwelling promptly and as soon as its proposed location was brought to his notice. He had immediate conferences on the subject with the defendant and his agents, and as the result of these, there Avas, as he says, an understanding with him that defendant would not proceed further until they came to some agreement about the building line. This understanding is not denied by defendant, and was made about the 10th of April, 1911. Work on the building was in fact stopped at intervals after this time, but, as 'defendant and his architect say, not permanently, but for the purposes connected with a change, not in the location, but in the plans for the structure. Complainant had no information as to this cause of the stoppage. The actual construction of the cellar walls on the line as located did not take place until about the 1st of June, and the foundations were completed about June 20th. On the 23d of June complainant communicated with Mr. Andrus by telephone, asking about the agreement, to which Mr. Andrus replied that “Ave decided that the agreement aauis not necessary, that Ave were Avell within our rights the way we were building, and the work Avas going ahead.” Complainant, on the 28th of June, gave formal written notice of his claim through his attorneys, and on July 5th filed the bill. Application for preliminary injunction Avas promptly made, but was denied, and defendant at his OAvn risk has gone on Avith putting up the frame of the building and enclosing it since the interAdeAV of June 23d. On these facts, it is clear, I think, that there has been no such laches as to deprive complainant of a right to apply for relief, and that the delay in filing the bill in fact occurred by reason of complainant’s reliance on the conclusion of some neighborly arrangement about the location. And inasmuch as it appears from Mr. Andrus’s evidence that the defendant had decided to proceed Avith the erection of the dwelling on the line proposed, solely on the ground that it Avas Avithin their rights, and therefore declined to make any agreement, there can be no claim that defendant relied on complainant’s delay, or Avas so injured thereby as to make it a bar to relief. The defendant, as it appears in the case, received a warranty deed from Bardsley and a guaranty of title from a title company, and on the advice of coimsel determined to stand on her rights and contest complainant’s claim. Belying on this claim of right, and not on any encouragement by complainant's laches, she proceeded with the building at her risk. This circumstance differentiates .this ease from the cases cited where laches was held to he a bar to an injunction.

Decree for complainant will be advised, to be settled on notice.


text:
    James O. Green et al. v. William H. Piper et al.
    [Decided July 12th 1912.]
    1. Injunction does not lie to compel public officers to perform their ditties respecting enforcement of the criminal law, nor to prevent commission of crime.
    2. Suit does not lie to enjoin city authorities against permitting an amusement park to be operated by the city’s lessees in violation of Sunday laws, and enjoining- the lessees from so conducting the park; the city not being entitled, as lessor,- to enjoin illegal use of the park.
    8. An ordinance relating to Sunday amusements did not become a part of a lease, executed by the city, covering an amusement park, in the absence of any reference thereto in the lease.
    4. On bill against city authorities and the lessees of an amusement park, owned by the city, to enjoin operation of the park in violation of the Sunday laws, a court of equity will not determine 'whether the lease could be made by the mayor and council, instead' of a park1 commission ; complainant’s remedy being to apply to the courts at law for authority to institute an 'action to determine the validity of the lease, as authorized by Practice act § J/4, 3 Oomp. 8iat. 1910 p. J/OGJi-

    On demurrer to bill and amended bill.

      'Mr. John >7. Slocum, for the demurrants.

      Mr. Aaron E. Johnston, for the complainants.
   Emery, V. C.

The bill and amended bill are filed by complainants as citizens, taxpayers and residents of Long Branch, an incorporated city, against the city, and the lessees of property of the city, called the Ocean Park. These lessees, or their managers (who have also been made parties), have erected and are operating'in the park various amusement structures, such as scenic railways, merry-go-rounds, Eerris-wheels, &c., and operate these or some of them on Sundays, as well as week days. These Sunday operations which have been continuous during the seashore season, are alleged to be violations of the "Tice and Immorality act and punishable as crimes. The lease from the city under which the tenants claim does not contain any provisions restricting the use of the leased property in this respect, or providing that the property shall not be used for illegal purposes. The lease is for the term of twenty years from March 1st, 1910, for two years at an annual rental'of $3,000, and for the next eight years five per cent, of the gross receipts of the tenant from all sources, and for the remaining ten years, ten per cent, thereof. At the time of the execution of the lease, Eebruary 9th, 1900, an ordinance of the city passed May 20th, 1907, was in force, the object of the second section of which was, according.to the bill, “to prevent among other things games and plays on the first day of the week, commonly called Sunday)” but on July 17th, 1911, as the bill alleges, this second section was repealed by the passing of another ordinance in lieu thereof, by the city council, from which last ordinance the second section preventing games and plays on Sunday was eliminated. Neither of these ordinances is set out in the bill, but for purposes of this demurrer, the ordinances will be treated as having the effect stated in the bill, and as if under the first ordinance the present amusements complained of were “games and plays” forbidden by the first ordinance, and as if the prohibition was repealed by the passage of the second ordinance. The charge in reference to the ordinance is, that this repeal of the ordinance forbidding games and plays was a violation of duty on the part of the mayor and common council of the city, and that by this act, and also by their failure to prevent the operation of the scenic railway on Sunday, they are aiding and assisting the lessees in open and notorious violation ol! the Sunday laws. The “Mayor and the City Council of the City of Long Branch” are made parties defendant by that name only, and the several individuals holding these offices at the time of filing the bill (September 2d, 1911) have joined with “Long Branch” the incorporated city, m demurring to the bill. The lessees, and the defendants claiming or operating under them, have not joined in the demurrer. The relief prayed in this case is a decree that the council of the city has power and authority to stop the operation of the scenic railway on Sunday, that the tenants and their managers have no right to operate on Sunday, and may be enjoined from so operating it, and that the mayor and common council be enjoined from permitting it to be operated, and for a mandatory injunction compelling the mayor and common council to prevent the operation on Sunday “by all proper means in their control.” This bill is-not for the protection of any property rights of any of the complainants, )mt is essentially a bill by a citizen and taxpayer of a municipal corporation—first, to compel by injunction the municipal officers to perform a duty of enforcing public laws, and second, to enjoin the lessees of the municipality from violating the criminal laws of the state in- their occupation of the lands leased by the city. In neither aspect of the case has a court of equity power to grant the relief asked.

Jurisdiction-by injunction, mandatory or otherwise, merely to compel public officers to perform their duties in relation to the enforcement of the criminal, law, has never been exercised. Bor any such willful violation of merely public duties, the remedies are exclusively in other courts. Courts of equity, on proper occasion, interfere to protect property rights, and for this purpose sometimes, interfere when the acts complained of are crimes; but they never exercise a jurisdiction based solely on the right of a suitor or citizen to prevent the commission of a crime or its continuance. Ocean City Association v. Schurch (Vice-Chancellor Grey, 1898), 57 N. J. Eq. (12 Dick.) 209, 271; Gilbough v. West Side Amusement Co. (Vice-Chancellor Pitney, 1902), 64 N. J. Eq. (19 Dick.) 27, 36; McMillan v. Kuehnle (Vice-Chancellor Walker, 1900), 76 N. J. Eq. (6 Buch.) 256, 263; approved on this point on appeal, Ibid. (1910), 78 N. J. Eq. (8 Buch.) 251, 252.

The exercise of such a jurisdiction by a court of equity and its determination by decree that a crime had been committed, would hold defendants to answer for a crime otherwise than by the presentment or indictment by a grand jury and violate the constitutional provision of article 1, paragraph 9. The bill alleges that several convictions under the criminal law for the operation of the scenic railway on Sunday have been obtained before a justice of the peace, that nominal' fines of one dollar were imposed, and that these convictions have had and will have no effect in preventing the violation of the law in the future, and further that the grand jury of the county have failed to indict defendants operating the railway upon complaint duly made and proved before them and in disregard of the charge of the justice of the supreme court in relation thereto. A court of equity assuming jurisdiction on these grounds would become a criminal court reviewing the proceedings of grand juries, and manifestly act in violation of the constitutional provision.

On the second claim to an injunction prohibiting the lessees of the municipality from illegal criminal use of the public park by violation of the Sunday law, it is plain that any power of this court to exercise jurisdiction must be based on two propositions :

First. That the city, in its capacity as the lessor and property owner, has the right to enjoin its lessees from the illegal use complained of, and second, that on the failure of the city as such lessor and property owner to protect its property rights, a citizen and taxpayer has the right to sue for the injunction on behalf of the city, making the city a party defendant.

The complainants’ case must fall, in my judgment, because the city as lessor has not, under the lease, the right to the injunction claimed. In the absence of any provision in the lease itself by which the mere unlawful use of the premises leased becomes a ground for forfeiture or injunction, or in the absence of a statute providing for the effect upon the lease of the unlawful use of the premises, there is no ground for interfering on behalf of the landlord by reason merely of such illegal use. I have not been referred to any authority for the exercise of any jurisdiction of this character. The cases in which relief of any kind is given to the lessor by reason of the illegal use of the premises are those where the protection is based either on the express restrictive covenants of the lease, or upon statutes authorizing1 forfeitures of the lease for such uses.

No provisions relating to the illegal use of the propertjr were incorporated in this lease. The provisions of the ordinance then existing relating to. Sunday games and plays did not, in the absence of any reference thereto in the lease, become a portion of the lease itself, and even on the assumption that by its mere existence it did become part of the lease, its subsequent repeal by the city itself relieved the lessees from its operation and by the act of the lessor itself. The fact that the individuals exercising at the time the legislative power and discretion of the city violated their individual duties to the public, by this repeal, and by such violation changed any property rights of the lessor arising by reason of the existence of the ordinance at the time of the lease, does not have the effect of preventing the legal operation of the repeal upon the lease, or authorize this court to decree relief based on the continued existence either in law or equity, of the section repealed, and abandoned by the lessor.

Complainant further claims that bj7 reason of the sharing by the city in all the receipts, it becomes a sharer in the profits of the illegal Sunda3r business, that this revenue could not be collected, and therefore the lease is imperiled. Eut unless the lease expressly provided for carrying on such illegal business, the lessor is certainly entitled to an account for the receipts from all the legal business, and inasmuch as the object of complainants’ bill is to restrict the business to legal business, there is plainly no basis for injunction on this claim.

Disposing of complainants’ case as presented and argued on its substantial claim, the demurrer of the city must be sustained, as also the demurrer of-the individual officers holding the offices. I do not consider at all the formal objection as to making the mayor and common council defendants by those names alone, there being no such incorporation. The bill also presented another question, -viz., one relating to the legal validity of the lease itself based on allegations that under the charter and laws, the right to make the lease was vested not in the mayor and common council, who made the lease by ordinance, but in another .body called “The Beach Park Commission of Long Branch.” This commission (not alleged, however,.to be a cor-, porate body) is made defendant by this name, and the individuals comprising the body .have joined in the demurrer. This claim, if there is any basis on which it can be considered at all in any court, is manifestly a legal claim only, involving purely questions of law which complainants have no standing to have adjudicated in a court of equity. If the municipality has any legal claim or demand arising out of the invalidity of the lease, complainants may apply to the courts at law for authority to institute an action thereon. Practice act, § 44, S Comp. Stat. p. 40 @4-'

I will advise an order sustaining the demurrer.


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    Caroline M. Boyle v. George Johnson.
    [Decided July 24th, 1912.]
    Where a brick building erected on leased premises by a tenant is a fixture and not removable by the tenant during his term, then the opening of a passageway through the closed wall onto adjoining premises without the landlord’s consent would constitute waste, restrainable by injunction; but, if the entire building is removable, the landlord’s right to injunction against the opening of a passage through the wall is so doubtful that the question would not be decided until final hearing.
    On application for preliminary injunction.

      Mr. Joseph R. Woodruff, for the complainant.

      Mr. Andrew Van Blair com, for tlie defendant,
   Emery, V. C.

The bill is by a landlord to restrain a tenant from making an opening in the wall of a brick building on the leased premises for the purpose of a doorway or passageway into a building on an adjoining lot, which has been leased by the tenant and upon which he has erected or intends to erect a building. The brick building on complainant’s lot, as appears by the answer and affidavits in reply, was erected thereon by defendant, on the leased premises, and at the rear of a frame building on the leased property. The frame building .was used for a café and restaurant and the brick addition was erected for use in connection with the business.

On the answer and the affidavits submitted by defendant and by complainant, a fair question of fact is raised as to whether the brick building is a fixture on the premises leased and not removable by the tenant' during his term, which ends April 1st, 1.913. If not removable, and the brick building as it stands is to be considered as part of the premises leased, then the opening of the passageway through the closed wall would seem, on the authorities, to be a waste, restrainable by injunction. Klie v. Von Broock (Vice-Chancellor Pitney, 1897), 56 N. J. Eq. (11 Dick.) 18, 31, 32. If, however, the entire building is removable, the right to injunction against now destroying part of it would seem to be at least so doubtful that the question of right should not be decided before final hearing. The rule as to relative inconvenience of granting or withholding injunction pending suit, favors the defendant. Pending final hearing, the rights of complainant can be protected by fixing conditions of refusing injunction, and such injunction will be denied, provided defendant will give bond—first, not to remove pending suit any portion of the brick building except for the purpose of the passageway, and second, to abide by and perform such order or decree as to closing up the passage and restoring the building to its present condition as may be made by the court. .

The bond to be with surety, if required, and terms to be settled.


text:
    Public Service Corporation et al. v. Town of Westfield.
    [Decided August 17th, 1912.]
    1. Under act of May 10th, 1884 (P. L. 1S84 p. S81) and act of April 21st, 1890 (P. B. 1896 p. SBB), giving companies organized for supplying and distributing electricity power to use the highways and streets for poles, provided no poles shall be erected in a street of an incorporated city or town without designation by the city or town of the street in which it shall be placed being first obtained, the proviso, while not affecting poles placed in streets of a town before its incorporation, applies to any placed therein after its incorporation.
    2. Act of May ISth, 1898 (P. L. 1898 p. 458), declaring all proceedings theretofore taken by municipalities, purporting to authorize construction of pole lines by electric companies', shall be taken to be legal and to have authorized the construction, and such companies which shall have so constructed such lines in the streets of any municipality shall be deemed to have in such streets all legal authority necessary to be secured from such municipality in order to lawfully construct and maintain such pole lines in such streets, was intended to apply to and validate only the municipal proceedings necessary for construction of such pole lines; so that poles erected in a street of a town after it was incorporated, without the necessary authority from it, were not legalized because, before it was incorporated, the township out of which the town was formed, and from which no authority was necessary, had designated all its streets for such poles.
    On bill, answer, replication and proofs.
    The Public Service Corporation is one of the complainants in this case, as the lessee of the other complainant, the United Electric Company, under a lease dated July 1st, 1907, for nine hundred and ninety-nine years. The United Electric Company, incorporated March 4th, 1899, under the Corporation act (Eevision of 1906), was, on January 10th, 1901, consolidated under the same name with four other companies, one of which was the Consumers Light, Heat and Power Company. This latter company was incorporated in Majr, 1893, under the Corporation act of 1896, and on April 3d, 1900, consolidated, under the same name, with two other companies, the Suburban Electric Company, incorporated in December, 1891, under the Corporation act of 1875, and the Union County Electric Company, incorporated under the same act in October, 1891. One object of each of these three companies consolidated by the agreement of April, 1900, was the supply and distribution of electricity for light, heat and power purposes, in the county of Union, in which the town of Westfield, the defendant, is located. In the certificate of incorporation of the Union county company and of the Suburban compare, the location in which electricity is to be supplied or distributed is not specifically mentioned in the certificates, and the only special designation indicating the municipalities in which poles are to be erected arises out of the designation in the certificate of the places in which the business of the corporation is to be conducted. These certificates of the Suburban and Union county companies were made under the Corporation act of 1875 and its supplements, then in force, which required a statement of the place or places in this state or elsewhere where the business of such company is to be conducted, and the objects for which the company shall be'formed. 1 Gen. Stat. p. 912 ¶ 11.' The places in this state where the business of the Union county company was to be conducted tvas stated to be “Roselle, in the county of Union, and other places in said county,” and in the Suburban company certificate to be
    “tlie City of Elizabeth, in the County of Union, and such other counties and places in said State as said company may find it necessary for the proper and profitable conduct of its business.”
    The certificate of the Consumers company, made under the Corporation act of 1896 (P. L. 1896 ¶. 280 § 8), stated that “the places in this state where the business is to be conducted are the counties of Middlesex, Union, Essex and Hudson,” and also that
    “the objects for which the corporation is formed are the constructing * * * maintaining and operating works with all the appliances and appurtenances for the supply and distribution of electricity for electric lights, heat and power, to counties of Middlesex, Union, Essex and Hudson, and all the municipalities contained in said counties, and to all persons, natural or artificial, residing or locating or located therein.”

      The right to the use of public highways for the erection of their poles and wires was first conferred upon electric companies incorporated under the act of 1875, by the supplemental act of May 10th, 1884. P. L. 188k V■ ^1 ch. 21k■

    This act provides, section 1:
    “That any company organized by virtue of the act to which if was a supplement for the purpose of constructing, maintaining and operating works for the supply and distribution of electricity for electric lights, heat or power, shall have full power to use the public roads or highways, streets, &c., for the purpose of erecting- posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil, provided however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from any incorporated city or town a designation of the street in which the same shall be placed and the manner of placing the same, and that the same shall be so located, as in no way to interfere with the safety or convenience of persons traveling on or over the said roads or highways, and that the public streets of any of the incorporated cities and towns of this state shall be subject to such regulations as may be first imposed by the corporated authorities of said cities and towns.”
    On February 6th, 1892, the Suburban company (incorporated in 1891) applied by petition to the township committee of the township of Westfield for permission to 'erect poles and wires on the sides of any and all streets and roads of Westfield township, for a system of electric distribution of current adapted to light, power and.heat for commercial and public use, and on this petition the township committee, on March 2d, 1892, granted to the Suburban eompanj’-, their successors and assigns, the right and privilege of erecting and maintaining such and so many poles and other necessary supports and fixtures as may be necessary along, over or under the streets, lanes, avenues or alleys in said township for the purpose of furnishing electric light, heat and power * * * upon certain provisos which included—first, that the Suburban company, its successors and assigns, shall be subject to such prudential rules and regulations as the township committee may from time to time prescribe by ordinance or otherwise, and third, that said poles shall he placed subject to the supervision of the township committee, and that these, with the other provisos, -should he fully accepted before the resolution shall go into effect. The acceptance of the Suburban company was duly filed. The supplement of 1884, requiring a previous designation of streets to be obtained from1 the “incorporated city or town,” did not in express terms include townships, but this supplement was amended by the act of March 17th, 1893 (P. L'. 1893 p. 412; 1 Gen. Stab. p. 963), so that the power to use the roads, streets and highways given to any corporation organized under the Corporation act of 1875, was made subject to the amended proviso that
    “no posts or poles shall be erected in any street of any incorporated city or town, or in any street of any toionship, without first obtaining from the incorporated city or town, or from the township committee of such township a designation of the streets in which the same shall'be located and the manner of placing the same,” &c.
    By a later act of April 31st, 1896 (P. L. 1896 p. 322; Comp. Stab. p. 3152), entitled “An act relating to electric light, heat and power companies,” power to use the public highways of the state for the erection of poles on the same to erect necessary wires and fixtures, was given to corporations organized or to be organized under the Corporation act of 1875, for supplying and distributing electric light, heat or power, with the same limitations and provisos as the act of 1884, and omitting the proviso in the act of 1893, requiring the previous designation by the township committee for poles to be erected in am street of any township. By the fourth section of this act of 1896 relating to electric companies, all inconsistent acts and parts of acts were repealed.
    On May 18ch, 1898, another general act entitled “An act relating to the use of public streets by electric light, heat and power companies,” was passed, by which it was, among other things, provided (P. L. 1898 p. 458 ch. 197), section 1, that
    “all proceedings heretofore had or taken by the several municipalities of this state, purporting to authorize the construction, reconstruction and extension of subways or pole lines, to be used by electric light, heat and power companies for the purposes of their business, and under which sub*ways and pole lines have been constructed * * * shall be taken to be legal and binding and to have authorized the construction of such subways and the erection of such pole'lines, and to authorize their main"tenance for public and commercial use and the electric light, heat and power companies which shall have so constructed subways or pole lines and placed therein or thereon cables or wires for the purpose of furnishing electric light, heat or power in the streets of any municipality shall be deemed to h'ave and possess in such streets all legal authority necessary to be secured from such municipality in order in such streets to lawfully construct, reconstruct and maintain such subways, pole lines,” &e.
    The Suburban company, after the passage of the resolution of March, 1892, proceeded to build its lines in the township of "Westfield, erecting poles on Broad street, among others, in the year 1892, and from that time continued to extend its system of poles on the streets and highways of the township up to its merger with the Consumers company in April, 1900, but without any other application to or designation by the township committee. Erom 1892, up to the time of filing the bill (March 30th, 1909), the Suburban company, or its successors, the Consumers company, the United Electric and the Public Service Corporation have continuously maintained and operated an electric plant in the streets of Westfield.
    On March 4th, 1903 (P. L. 1903 p. 31 ch. lli), the township of Westfield was made an incorporated town. At the time of this incorporation of the town, the United Electric Company had in operation, through Westfield, an electric line transmitting power from Cranford, on the east, to Plainfield, on the west, for which line poles were erected on several of the streets of West-, field, and for the purpose of a new transmission line between these points, the complainant lessee, in November and December, 1908, replaced some of the old poles and also placed other poles on other streets of the town. Whether between the incorporation of the town and this erection of poles on new streets in 1908 there had been any placing of poles on the streets other than those located during the township regime, does not appear, but no application to the town for a designation of the places for tire new poles was made. On December 22d, 1908, the town council notified the complainant to remove all poles erected on Grove street, or any other street, as having been erected without the consent of the town council. The complainant declined to remove any of its poles, claiming that consent of the town to their erection was not necessarjr, and about January 1st, 1909, began the use of the new transmission line to Plainfield, by which it supplies electricity to light the public streets and other public places in Plainfield and other localities along the Central railroad. -On March 5th, 1909, the town notified complainant to remove thirty-nine poles erected on certain streets, specified as erected thereon without a designation from the town of the streets and the manner of placing the poles, and that on failure by the company to remove the same by April 1st, 1907, the overseer of the roads was directed to remove them. On the filing of the bill, and after a hearing, a preliminary injunction restraining the removal pending the suit was made.

      Mr. Frank Bergen, for the complainants.

      Mr. Paul Q. Oliver, for the defendant.
   Emery, V. C.

(after statement of facts and issues).

The right of complainant to maintain the poles erected for the new transmission lino through Westfield, is placed upon two grounds. The first is the right to use all the streets located in the territory comprised in the township of Westfield in 1891, at the time of the incorporation of the constituent companies, the Suburban and Union county companies in 1891, while the act of 1884 was in force, and all the streets in the territory of the township in 1898, when the Consumers company was organized and the law of 1896 was in force. This right, under the certificates of organization, is claimed to be, so far as the location of poles is concerned, an absolute and vested right of property arising under the acts and the certificates of incorporation, not limited by any municipal control over designation of location, in any of the streets of highways covered by the operation of their charters, except to the extent that those streets or highways were, at the time of incorporation, within the limits of then existing cities and towns. In the certificate of the Union county company the business was to be conducted at “Rogelle, in the county of Union, and other places in said county,” and the business of the Suburban “in the city of Elizabeth and such other counties and places in this state as said company may find it necessary for the proper and profitable conduct of its business.”

The streets in which rights of location under these certificates are claimed are not in the localities specially named as the places of doing business, and assuming that the general designations are sufficient to comply with the statutory requirements as to the places of business and the objects of the corporation, the right now claimed outside of Roselle and Elizabeth is, that under the Union county certificaté that corporation received at once an absolute vested legislative right to locate its poles in all the territory of Union county not then comprised within incorporated cities and towns, and under the suburban certificate a similar right in all the territory in Union or other counties throughout the entire state not then (1891) included within the boundaries of cities or incorporated towns.

Under the Consumers company, where the object of the company was specifically stated to be the supply and distribution of electricity in the counties of Middlesex, Union, Essex and Hudson, similar vested and absolute rights of propertyship are claimed, arising on its incorporation in 1898 and extending over all the territory in these four counties, not then included within the boundaries of cities or towns therein.

If the rights given by the acts of 1884 and 1896 and the certificates of incorporation are property rights to locate poles for electric supply in territory which must be taken as specifically defined by the acts and the certificates, these rights are not subject to subsequent limitation or change by municipal act, when accepted and acted on, as they were in this ease, by the erection of poles in some of the streets of the territory included in the grant for the purposes of the business specified in the charter. But manifestly rights of this extent and character must be clearly conferred. The question to be decided is the extent and operation of the grant made by the acts of 1884 and 1896, both of which acts include the proviso as a limitation on the grant itself, and in both of which the proviso must therefore be construed with the grant. This question differs essentially from the question decided in cases relied on by the complainant, where there were subsequent municipal acts revoking the designation .of streets and these subsequent revocations were held to be void. Hudson Telephone Co. v. Jersey City (Supreme Court, 1887), 49 N. J. Law (20 Vr.) 303; Phillipsburg Electric Light Co. v. Phillipsburg (Supreme Court, 1901), 66 N. J. Law (37 Vr.) 505, 507. And in the present case, if it were clear that the acts o£ 1884 and 1896 were intended to grant the rights to electric companies to use ail of the public highways of the state not within the limits of cities or towns at the passage of the act or at the time of their incorporation of the companies, then the subsequent incorporation into a toyn of a portion of the territory clearly intended to be included within the privileges of the legislative act, would not operate on or affect the previous legislative grant. Public Service Corporation v. De Grote (Vice-Chancellor Stevenson, 1905), 70 N. J. Eq. (4 Robb.) 454. But the question here is upon the construction of the grant itself limited, as it is on its creation, by tiro proviso, and the grant must be read and construed with the proviso, in order to determine what rights of property or other rights were conferred. Thus read together as one grant, it appears that the legislature, so far as incorporated cities and towns are concerned, intended to make a distinction in reference to the right of electric companies to an unrestricted choice of streets for location of poles, and further intended to reserve in favor of cities and towns the right of designation of the streets for location. This being apparent, the further question of statutory construction is whether, in reserving this right to incorporated cities and towns, the legislature intended to reserve this right of designation in favor only of those cities and towns which were incorporated either at the time of the passage of the laws or at the time of the incorporation of the companies. There is no apparent reason why, as to new lines of poles erected within its territory after incorporation .as a town, the newly incorporated town should not have the same privilege of designation and the same duties relating thereto as cities and towns incorporated at the passage of the acts, or at the time of the organization of the companies.

As to the lines of poles already existing at the time of the subsequent incorporation of a town and- their maintenance, such incorporation of the town is subject to the previous location of poles made under direct legislative grant which has been acted on, and as to these the town has no power to revoke or control the location. Nor lias the incorporated town the right to refuse to designate streets for new lines, but as the duties and rights of towns and cities relating to their streets and highways are continuous and are or may be subject to constant and, changing exigencies, the exercise of a right of this character which was certainly reserved to towns incorporated at the passage of the act, should not, I think, be construed to be taken away from any towns or cities incorporated or extended in their limits subsequent to the act, unless this distinction is clearly made by the act. I cannot see any such clear intention in this act, and, on the contrary, construing the grant in connection with the proviso, the proper construction of the effect of the act is that the right to use the highways was for the sole purpose of authorizing erections therein which would otherwise have been public nuisances, and had the incidental or consequential effect of conferring property rights on lire highways only to the extent that erections were made under the act; that subject to such property rights acquired by the erection, the power over highways remained in full force and effect—and that the further exercise of this power by the proviso in the act itself expressly conferring upon incorporated towns and cities a limited power to the extent of designation of locations within their limits was reserved in favor of ail cities and towns subject only to the property rights in lines already erected and maintainable against the ■ legislature itself.

The second ground upon which complainant rests its right is the enabling act of 1898. This act is relied on as a confirmation of the designation made by the township committee in March, 1892, on the application of the Suburban company. This designation extended to all the streets of the township, and its generality was no objection to its validity. Myers v. Electric Company (Court of Errors and Appeals, 1899), 63 N. J. Law (34 Vr.) 573. At the time of the passage of the act of 1898, it had not been decided by the court of errors and appeals that the “incorporated town,” under either the act of 1884 or 1896, included townships, but this had been the construction of the lower courts in reference to the telegraph .company statutes in which the same word “towns” was used. Broome v. Telegraph Company (1887), 49 N. J. Law (20 Vr.) 624; Township of Summit v. New York and New Jersey Telephone Co. (1898), 57 N. J. Eq. (12 Dick.) 123, 126. In the former ease, the court of errors and appeals, in affirming the judgment, reserved decision upon this point (50 N. J. Law (21 Vr.) 432, 434), and, subsequently, in East Orange v. Suburban Electric Light and Power Co. (1899), 59 N. J. Eq. (14- Dick.) 563, 570, &c., tlie appellate court decided that in the act of 1896 the word “incorporated town” in the proviso did not include townships, but applied only to cities and towns eo nomirle.

This act of 1898 was, on the face of it, a validating act, and the entire act must be considered for the purpose of applying it to the proceedings intended to be validated. Thus construed, the act, in my judgment, was intended to apply to municipal proceedings where previous authorization by the municipality was by law necessary for the construction of subways or pole lines, and to validate the municipal proceedings which purported to give this authority and which had been acted on. The clause of the act declaring that the electric companies which had constructed subways or pole lines under such proceedings, should be deemed to have all legal authority necessary to be secured from the municipality in order to construct the subways and pole lines in the streets is conclusive, I think, on the scope of the validating act, and shows that the intention of the act was to validate proceedings purporting to be taken to authorize the construction, where' the municipalities had, under their charter or other laws, the right to authorize. It was not, I think, intended to increase the already existing power of the municipality, but to cure defective proceedings purporting to act under the power to authorize.

On neither ground, therefore, are the complainants entitled to an injunction to restrain the removal of the new line of poles erected without previous designation. Counsel on both sides have argued fully the question of complainants’ right to maintain the poles, and have submitted it for determination. Strictly, however, the right set up by complainants is a legal right and the equity jurisdiction is in aid of the legal right, and if they desire to take the opinion of a court of law upon- the question of their legal rights, and will consent to appear and defend any action at law brought by the town to enforce the removal, I will hear an application for a continuance of the injunction pending the settlement of. the rights at law. Otherwise, the injunction will be denied and the bill dismissed.