author: Backus, Vice-Ordinary.

text:
    Esther Hauser et al., petitioners, v. Edward Hauser, defendant.
    [Decided June 1st, 1921.]
    1. Where on petition to remove an executor as obstructing the due administration of an estate the court found reasonable cause for the indictment, but, although finding that the defendant had been extremely annoying in his acts as executor, found no justification for removing him, but dismissed his counter-petition .asking removal of his co-executor as being without merit, and filed by way of reprisal, it was improper to settle upon the defendant the costs of the trial and a counsel feo of $300 to an attorney representing the estate.
    2. Where an executor joined with the beneficiaries of the will in petitioning for the removal of the other executor, it was improper to award a counsel fee to the petitioning executor or denial of the petition, even though the petition was reasonably founded, the petitioning executor’s prosecution of the petition in such case being a duty imposed upon him as executor, for which he could not charge or be allowed compensation.
    •3. P. L. 1920 p. 561/, is applicable only to cases of settlement of an account, and not to litigation such as was had in the case.
    On appeal from the orphans court of Essex county.

      Messrs. 8Lein, Stem & Hminoch (Mr. Ralph Lum of counsel), for the petitioners.

      Mr. William Ilauser and Mr. William H. K. Daveif, for the respondent.
   Backus, Vice-Ordinary.

Simon Hauser gave his estate to his widow for life, with remainder to his children, in equal parts, and appointed his widow and two sons, William and Edward, executors of his will. The widow and William, and the remaining children, petitioned the orphans court to remove Edward as executor, for alleged malfeasance and misfeasance in office, in that he, generally speaking, habitually and studiedly obstructed the. due administration of the estate; the last act that culminated in these proceedings being that he refused his consent to the sale of an $80,000 property upon a $5,000 down payment. The orphans court found reasonable cause for the indictment, and although it found that Edward had been extremely annoying to his family, it felt itself not justified in removing him. At the conclusion of the testimony, by leave, Edward, filed a counter-petition to remove William. The court dismissed the counter-petition, as being without merit and filed by way of reprisal, and settled upon Edward the costs of the trial, amounting to $144, and a counsel fee of $300 to William H. K. Davey, representing the estate. The court also alloyed William Iiauser, executor, a counsel fee of $300 and costs, amounting to $35.75, and to Mr. Davey, associate counsel, $200, to be paid out of the estate.

In view of the court’s finding in favor of Edward, cost on the main petition could not justly be awarded against him, and I do not think he ought to be penalized for his counter-attack. The counter-petition entailed no additional costs and added little or nothing to the labor of counsel. The award against him personally is not justified in judicial discretion. The decree will be modified and the counsel fee and costs ordered paid out of the estate. If any of the costs were occasioned by the counter-petition the modification as to them will be pro icrn.to.

The award of counsel fee to William was without warrant in law. His prosecution of the petition to remove Edward, if reasonably founded, was a duty imposed upon him as executor, for which he cannot charge or.-be allowed compensation. Ordinary v. Connolly, 75 N. J. Eq. 521. The act of 1920 (P. L. 1920 p. 564) allows a “just and reasonable counsel fee” to accountants who serve the estate as counsel. Such allowance is made only upon the settlement of the account and is not apposite to the present litigation. The decree will be further modified by striking out the allowance of counsel fee and costs to William. So much of his fee bill as was actually disbursed will be allowed to the executors. William, having doubt as to his right to a counsel fee, filed a waiver, but he has not disclaimed as to the proctor’s allowances in the fee bill, hence the modification of the decree both as to counsel fee and costs.

The counsel fee to Mr. Davey will not be disturbed. Although the proceedings were not successful, they were not without merit, and I think the retention of counsel was justified and the fee rightly allowed.


source: Caselaw Access Project

author: Grieein, Vice-Ordinary.

license: Public Domain

text:
    In re Benson's will.
    [Submitted May 18th, 1921.
    Decided June 23d, 1921.]
    1. Where a testator left his estate to his daughter with whom he lived during the time he was from seventy-three to seventy-seven years old, instead of distributing the estate between such daughter and two other children who survived him, a presumption against the daughter of undue influence arises.
    2. Evidence held that the will leaving the property to the daughter with whom the testator lived was not the product of undue influence by the daughter.
    S. Evidence held to prove that the testator’s domicile was within the state, notwithstanding recitals in the will and codicil that he was domiciled in another state.
    4. Recitals in a will and codicil as to the testative domicile are evidential of the domicile, but may be overcome by evidence contradicting them.
    On caveat against probate of will.

      Mr. Albert C. Wcdl (of 'Wall, Haight, Carey & Ilartpence), for the proponents.

      Mr. Samuel Reyman (of Ileymam, & Reyman), for the caveators.
   Grieein, Vice-Ordinary.

. This matter comes before the court on a caveat filed against the probate of the- will and codicil thereto of Colonel Frederick S. Benson, who died at Atlantic Highlands, in this state, on the 23 d day of February, 19,20, at the age of eighty-one years.

The will was made in 1913, when testator was seventy-three years old; and the codicil was made in 1917, when he was aged seventy-seven years. He left an estate of about $300,000. By his will he gave, in the second paragraph, $1,000 to his son, Fred S. Benson, Jr.; $1,000 to his daughter Bessie Bubens, and $5,000 to his daughter Maude B. Spear. He also gave to said three children, share and share alike, the sum of $1,500, plus interest at the rate of six per cent., from 1868 to the time of his death, being the sum advanced to him by his deceased wife towards the purchase of a home for the family. This latter sum, with interest, amounts to approximately $6,000, being $2,000 to each. These two items, amounting to $3,000, are all that these two children, Bessie and Fred, were given under the will which passed this large estate, excepting that he gave his gold Erodsham chronometer watch, which had been his father’s, to his son, Ered. To his daughter Maude he gave all of his real estate, including the cemetery lots in Greenwood cemetery, Brooklyn, New York, and Newton cemetery, Newton, Massachusetts, as he stated in the will "as an appreciation of her devoted care and love for me after the death of my wife, Charlotte E. Benson.” In the sixth paragraph he gave to his executor all of his securities, including stocks, bonds and cash, subject to prior bequests, in trust to pay the net income therefrom to his daughter Maude R. Spear, during her lifetime, and after her death to pay the net income therefrom to his grandson, Frederick H. Spear, who is the son of Maude.

In the seventh paragraph he directs that after the death of Maude and h,er son, Fred, his trustees shall convert all his securities into cash, and that the proceeds of the securities converted, and cash, shall be divided among twenty-two religious and charitable institutions therein named; and for the purpose of this division he specified the sum that each institution should receive, and provided that if there was more or less than sufficient to pay such legacies, each legacy should be increased or diminished ratably. Of these legacies eighteen were in. the sum of $5,000 each, and four in the sum of $2,500 each.

In the eighth paragraph he gave the residue of his estate, including plate, pictures, horses, carriages, harness, boats, clothing and jewelry, to his daughter Maude.

The codicil is dated the 15th day of March, 1917. By this codicil he revoked the sixth and seventh paragraphs of his will, and in the second paragraph gave to his executor, subject to the bequests in the second, third and fourth and fifth articles of 'the will, in trust, all of his securities, including stocks, bonds and cash, to pay the net income to his daughter Maude for life, and after her death to divide the principal of the trust fund into as many equal separate trust funds as there shall be then surviving any of his grandchildren, Frederick H. Spear, Maude R. Benson, Warren S. Benson, George L. Fox and Glad]rs M. Ainslee, and to pay the income of one such fund to each such grandchild during his or her life; and, generally, by the third paragraph, after the death of Maude and the grandchildren mentioned, the principal of tírese trust funds he directed should pass to the charitable and religious institutions named in paragraph 7 of his will, in the proportions therein specified.

The testator, in his lifetime, was the chief engineer of the Brooklyn Union Gas Company, eastern division, and so continued down to 1907, when he resigned. In 1904 his son, Fred, went into the employ of the company under his father, and continued in 'this employment ever since, being superintendent of the Nassau works station of the company. The relations between the father and son were very pleasant down to the date of the death of the testator’s wife, when discord arose over her will, which will be dealt with later. He seemed to be very fond of his son and took pride in his progress. Even after the death of his wife, notwithstanding the friction that had arisen, the testator frequently visited the works, made inquiries concerning his progress, and was greatly pleased with it.

Were it not for this discord, there was nothing in the life and conduct of Fred which would induce a parent to make such an unnatural and unjust will. Prior to 1911 Fred’s mother had said she would will her propeity to him. This he expected to use in discharging the debt on his home. He had no income outside of his earnings. He was married and had two children.

Mrs-. Spear became a widow in 1901, burdened with one child. Her husband left very little means, and she, in a large measure, supported herself and her child from her own earnings, part of which she received from her mother and father for services rendered. When her mother died, in 1911, she, by her will, gave her property to the daughter Maude. This so enraged Fred that he and Maude remained virtually estranged down to the date of the testator’s death. I may say that there was nothing in the will of the mother which justified Fred’s conduct. Her estate was small; Mrs. Spear had very little property, and it was quite natural for the mother in such a situation to prefer her daughter, burdened with this child, rather than her son, who occupied a position with prospects of advancement.

The other daughter, Mrs. Rubens, at the time of testator’s, death, was a woman of wealth, and the failure of the testator to suitably recognize her in his will could in no sense suggest the idea that the will, as to her, was unjust or unnatural. Mrs. Rubens was the eldest, Mrs. Spear was next, and Fred was the youngest child. At the time he testified he was forty-four years old. Touching the attainments of the three children, it is perfectly plain that Mrs. Spear, in force of character, will power and physique, outranked the other children. She is apparentty a woman of a dominant disposition, large in stature, with a pronounced military bearing, and rather inclined to boast of her mental superioritj’ over her sister Mrs. Rubens. Fred is small in stature, lacking, I think, the mentality and diplomacy of his sister Maude, which plainly appears from his treatment of Iris sister and his father after his mother’s death.

The origin of the quarrel, in brief, arose from the idea which entered the mind of Fred that his sister Maude had unduly influenced liis mother to make this will, and he so charged; and there is some evidence of a vague and indefinite character which gives slight color to the charge.

The testator tried to compose their differences, and endeavored to restore family harmony between Maude, on the one side, and Mrs. Rubens (who sided with Fred) and Fred, on the other, but failed. Fred would not visit the home of his father because of the presence of Mrs. Spear. If the father desired to visit Fred, Mrs. Spear was not a welcome visitor with him. It was certainly a very painful and sorrowful thing for this old gentleman, not far removed from the grave, to find such discord in his family, which arose, as he expressed it, over the few thousand dollars left to Maude by the mother.

'While this situation existed the will of March 28th, 1913, -was drawn, giving Fred, in the aggregate, not more than $3,000. Later oh, while the dislike and bad feeling exhibited by Fred towards his sister—outwardly, at least—moderated, there was no real reconciliation between them, and there did not exist that kindly feeling or affection that should exist between brother and sister.

On March 15th, 1917, the codicil above mentioned was executed, and it is apparent that at this time the feeling of the father was still very strong against his son, Fred; but his mind turned to the equal protection of Ms grandchildren.

Two points are made against the probate of the will: The first goes to its validity, namely, that it was the product of undue influence exerted by Maude; and the second goes to the jurisdiction of the court, namely, that the testator was not domiciled in this state at the time of his death.

I. Touching the question of undue influence: The evidence is that Maude was of a dominant disposition and strong personality; that she and the testator lived together in the same household, from 1911 until his death; that the other children seldom came in contact with him. These facts I find to be true. But I also find that if the children had so- desired, there would have been no difficulty in seeing the father. He appeared to love them, and yearned for their company; but they denied themselves to him because of their feeling against their sister Maude. There is evidence which I am inclined to believe, although denied by Maude, that she, when accused of influencing the mother in the making of the will, said she would also have her father make a will leaving everything to her.

There is a great mass of conflicting evidence in, the case which I do not deem it necessary to pass upon, because the conclusion I have reached is that, in the situation presented, with this strong woman, in the prime of life, living with this old gentleman-, from seventy-three to seventy-seven, years of age, in complete contact, freed from the influence of the other children, the presumption of undue influence arises, and casts the burden upon the proponent to prove the negative. This, the proponent says, has been- accomplished, first, by the evidence of Maude; second, that the generosity of the testator towards Maude was greatly induced by the kindness and service rendered by her to her father, which does not constitute undue influence; third, that the conduct of Fred and Mrs. Bubens so provoked the testator as to be the promoting cause of his practically ignoring them in his will; and also that the testator went unattended to his counsel, reputable lawyers in the city of Brooklyn, and gave the data from which the will was prepared, out of the presence of Maude, and the will remained in Brooklyn, unseen by Maude, until after the death of the testator; and, lastly, by the evidence of the friends and associates of the testator, and of counsel who drew the will, who testified to the strength of character and will power of the testator, from which it is quite plain that Maude, if she desired to do so, not only could not influence the testator, but really that it might be unsafe for her to try.

The testimony of Maude is that she did not in the least attempt to influence her father; that she was very anxious to have her brother and sister become friendly and visit them; and there is evidence that she made such attempts; but the caveators say that such efforts did not come from the heart, but were merely made for the purpose of leading her father to believe that she was very anxious to be friendly with her brother and sister, when, in fact, she was anxious to1 keep them away for the ulterior purpose of securing her father’s property. I am not inclined'to the view that the evidence justifies this conclusion. She wrote letters for her father, which he signed, couched in the most affectionate terms, at the same time criticising and upbraiding them for making his life miserable in his later years.

Caveators contend that it is significant that these letters sometimes were sent after the testator had seen Fred at the works in Brooklyn and had made inquiries among the persons there employed as to Fred’s progress, and had expressed great pleasure at his success, and had displayed every mark of affection that a father should to a dutiful son;' that he would not then speak of these famiN differences, but seemed to wait until he returned home, when, after writing letters showing great paternal love, he would turn to the question of the family strife, and upbraid Fred and Mrs. Rubens for breaking the family ties and making his life unhappy in his declining years. It is contended that these things show that the letters were the product of Mrs. Spear’s mind and not of the testator’s. There is other evidence along this line which only by inference might cause one to conclude that Maude was poisoning the mind of the father against Fred and Mrs. Rubens, and putting him in such a frame of mind that he would disinherit them. If the testator was a man of weaker mind, these things might make one pause in determining whether the proponent had met the burden of proof. But the testimony as to the strength of will and dominant disposition of the testator is so clear and convincing that I am driven to the conclusion that, however unjust and unnatural the will may be, it was not the product of undue influence exerted by Mrs. Spear upon him. It is quite likely that the stubborn course of conduct of Fred, to the mind of the testator, was such a breach of duty and lack of that affection which the son owed to the father that the testator concluded that he had forfeited his right to participate in the distribution of his estate. In re Brengel's Will, 85 N. J. Eq. 487; affirmed, 85 N. J. Eq. 599; In re Gleespin, 26 N. J. Eq. 523 (529); Den, d. Trumbull v. Gibbons, 22 N. J. Law 117; In re Eatley's Will, 82 N. J. Eq. 591.

II. Was the testator domiciled in this state at the time of his death ? . -

For a great many years he owned the Beachsicle Farm, at Atlantic Highlands, where he resided during the summer, spending his winter months in Brooklyn. After his wife died he' lived with his daughter Maude, in her small apartment, in Brooklyn, and finally suggested to her the idea that she go to live with him at Atlantic Highlands, and to this she acceded. In January, 1916, he became ill, as I recall, with an attack of la grippe, and that year moved to Atlantic Highlands, where they resided continuously until the testator’s death, during which period he never had a home nor resided in the city of Brooklyn. Having concluded to make his permanent residence, winter and summer, at Atlantic Highlands, he tore out the heating system (which was intended for spring, summer and fall use only) and put in a large hot-water heating plant, and other conveniences, to make the residence suitable for living therein all the year around. He registered and voted at Atlantic Highlands in 1916, 1917, 1918 and 1919, and not elsewhere. This is testified tó by Mrs. Spear, and is undisputed. Mr. Byrne and Fred Benson, on election day of 1912, while going to Deal, met the testator on the boat, who said to them, “I am going down to vote;” whereupon Mr. Byme asked him, “Don’t you vote in Brooklyn?” lie said, “No, I am going to Jersey to vote,” and he said, “It will help me out with my taxes; they soak a New Yorker.”

This testimony plainly indicates that the domicile of the testa! or was in this state. Any other view would call for the conclusion that this testator—an intelligent man—deliberately intended to violate our Election law and commit a crime. In re Paullin's Will, 109 Atl. Rep. 13; affirmed, 113 Atl. Rep. 240.

The only evidence which is said to negative the fact of domicile in this state is that in the will he is referred to as “of the borough of Brooldyn, city of New York,” and in the codicil as “of the borough of Brooklyn, city and State of New York.” While these recitals are evidential of domicile, yet when it is considered that the will was drawn by his Brooklyn counsel; that all his business activities had been in Brooklyn; his bank account and safe deposit box were in Brooklyn, his mind may not have turned to the effect or materiality of such a representation. It may be that he thought it referred to his business; or that he gave no thought to it. But, certainly, his acts in abandoning his residence in Brooklyn, fixing his home in Atlantic Highlands for a permanent residence, and remaining and voting there both before and after the making of the will and codicil for a period of four years until his death, during which time he had no other place of abode, clearly overcome any inference that might be drawn from a mere recital in the will and codicil as to his place of residence.

A decree will be advised that the will and codicil be admitted to probate.


author: Gummere, Chief-Justice.

text:
    Town of Kearny v. Mayor and Council of the City of Bayonne et al.
    [Decided June 20th, 1921.]
    1. Whether or not a statute confers upon a municipality the exclusive right to furnish water to individuals or corporations occupying property within its territorial limits is a purely legal question, which must be determined primarily by á court of law.
    2. A party is not entitled to a preliminary injunction when the alleged right upon which he founds his claim is a purely legal one, and is, as a matter of law, unsettled.
    3. Where the nearest point of a town’s water distributing system was over four miles from the properties of certain corporations located within the town’s limits, and the town had no mains for supplying water to those properties, and had taken no steps toward extending its mains thereto, it cannot restrain the execution of contracts between such corporations and another city for the furnishing- of water, since the performance of such contracts cannot work any present injury to the town, though it has the exclusive right under the law to furnish water to such corporations.
    4. A preliminary injunction will never be ordered unless from the pressure of a present urgent necessity; and the damage threatened which it is legitimate to prevent during the pendency of the suit, must be, in an equitable point of view, of an irreparable character.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane.

      Mr. Clyde I). Bonier, for the appellant.

      Mr. Pierre P. Garven, Mr. Aaron A. Melmker, Mr. Conover English, Mr. Josiah Slryker and Mr. Frederick J. Faulks, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The appeal in this case is taken from an order denying a preliminary injunction restraining the city of Bayonne, the Federal Ship Building Company and the Blast Furnace Products Corporation from proceeding with the execution of certain contracts by the terms of which the city agrees to supply water in specified quantities to the ship building company and the Blast Furnace Products Corporation for a long period of years. The plants of the two corporations to which the water is agreed to be supplied are each of them located within the territorial limits of the town of Kearny; and this municipality bases its claim to the injunction upon the ground that, by force of chapter 265 of the laws of 1907, entitled “An. act in relation to the furnishing, supplying and use of water within the limits of municipalities in this state maintaining or operating a public water supply,” &c., &c. (P. L. p. 676). and of section 16 of the act of March 27th, 1917, entitled “An act concerning municipalities” (P. L. pp. 319, 438), the exclusive right to furnish water to individuals or corporations occupying property within its territorial limits is vested in it, and that this right cannot be exercised by any other municipal corporation except upon first obtaining the consent of the complainant.

In reaching the conclusion that the complainant was not entitled to a preliminary injunction, the learned vice-chancellor considered that the existence of the right claimed by the town of Kearny liad been negatived by the decision of this court in the ease of Kearny v. Jersey City, 79 N. J. Law 599; and that, even if the cited case was not conclusive upon the existence of this right, and the question was still an open one, a reading of the statutes referred to demonstrated that they were no bar to the making by the defendants of the contracts the execution of which the complainant sought to enjoin.

In the view which we take of this case, the allowance of a preliminary injunction was rightly refused; and we reach our conclusion -without considering the scope of our decision in Kearny v. Jersey City, and also without considering whether or not the statutes appealed to by the complainant confer upon it the exclusive right claimed. That right, if it exists, is a purely legal one, and whether or not it has been conferred by the legislature is a purely legal question, to be determined primarily by a court of law. Morris and Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530, 539; Stanford v. Lyon, 22 N. J. Eq. 33, 35. If the view of the'vice-chancellor with relation to our earlier decision is sound, then the right asserted by complainant does not exist. If, on the other hand, as the complainant claims, that decision did not determine the question of the existence of the right asserted, then, so far as the case discloses, the question of its existence or non-existence has never been judicially determined in a court of law, and “no rule of equity is better settled than the doctrine that a complainant is not in a position to ask for a preliminary injunction when the right on which he founds his claim is as a matter of law unsettled.” Stevens v. Newark and Paterson Railroad Co., 20 N. J. Eq. 126; Citizens’ Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299.

The order refusing the injunction is proper for another reason. It appeared in the case that the water distributing system of the town of Kearny at its nearest point from the properties of the Federal Ship Building Company and the Blast Furnace Products Corporation is at least four and a half miles distant therefrom, and that the town has at present no mains for supplying water to these .’properties, or to either of them, and had taken no steps up to the time of the filing of the bill toward extending its existing water mains so as to supply water to these two corporations, or either of them. In this situation, it is manifest that the performance of the contracts between the city of Bayonne and these two manufacturing corporations cannot work any present injury to the complainant, even if the right which it asserts is vested in it. It cannot now produce any loss of revenue to the municipality, nor can it produce such loss in the future unless and until the town of Kearny extends its mains to the plants of these two manufacturing corporations and so puts itself into a position where it can supply to them the water needed by them for the puiposes of their respective businesses. When it has done this, if the right which it claims has been in fact conferred upon it by the legislation on which it relies, it may then be entitled to the relief now prayed for. But, at present, it is not; for, as was declared by this court in the Citizens' Coach Co. Case, already citéd, it is entirely settled that a preliminary injunction will never be ordered unless from the pressure of a present urgent necessity; and the damage threatened to be done, and which it is legitimate to prevent during the pendency of the suit, must .be, in an equitable point of view, of an irreparable character. Under the facts already recited, it can hardly be said that the case before us presents such a situation.

For the reasons above expressed, we conclude that the order appealed from should be affirmed.

For ajjirmcmce—Tne Ci-iiee-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalircii, Black, Katzenbaci-i, White, Herrenheimer, Gardner—12.

For reversal—None.


author: Gummere, Ci-iiee-Justice.

text:
    Alexander L. A. Mackie v. John J. Cain and Michael M. Keshin.
    [Decided June 20th, 1921.]
    1. The act to quiet titles to real estate docs not warrant a bill in •equity to contest the legality of a municipal assessment and tax sale thereon under the Martin act, that being a question exclusively for the supreme court to determine.
    2. It is beyond the power of the legislature to vest in the chancery court any of the fundamental prerogatives of the supreme court.
    3. In a proceeding to quiet title, the chancellor’s finding that the complainant has not had peaceful, continuous, open and notorious possession for a period of twenty years will not be disturbed unless it is clearly against the preponderance of the testimony.
    4. In the absence of an adjudication by a court having jurisdiction over the question whether or not sales for assessments under the Martin act were invalid, the presumption is that the claimants under such sale have good title to the disputed lands.
    On appeal from a decree in chancery.

      Mr. Frank W. Hastings, Jr., for the appellant.

      Mr. John Francis Gough and Mr. Max Levy, for the respondents.
   The opinion of the court was delivered by

Gummere, Ci-iiee-Justice.

The bill in this case was filed under the act of March 2d, 1870, entitled “An act to compel the determination of claims to real estate in certain cases and .to quiet title to the same.” Comp. Stat. p. 5399. In his bill the complainant alleges that he is in the peaceful possession of, and has a clear title to, a tract of land in the city of Bayonne; that his title to a certain portion thereof is clouded by the claim of the defendant Cain that he is the tme owner thereof under a tax sale made pursuant to the Martin act by the city of Bayonne in 1892; and that his title to another portion of the tract is likewise clouded by the claim of the defendant Keshin that he is the owner thereof under a similar tax ‘sale'. He then avers that each of these tax sales made by the municipality was fatally defective because of the failure of the municipality to specifically comply with all of the provisions of the Martin act relating to the method of adjusting past-due taxes and the procedure to be followed in case the taxes as adjusted were not paid and a sale for their collection should become necessary. On the basis of this averment he sought an adjudication from the court of chancery declaring the Martin act sales null and void by reason of the defects alluded to; that no right, title or interest in the lands described in the bill passed to the vendees of the city or to any persons claiming under such vendees by virtue of mesne conveyances; and that therefore the respective claims of the two defendants, Cain and Keshin, were without legal foundation.

He further set out in his bill that he now is, and for more than twenty years last past has been, in possession of these lands and premises; that his possession has been adverse to the asserted rights of the defendants, Cain and Keshin; that it was under a claim of title in himself; and that it has been exclusive, open, notorious, peaceful and uninterrupted during all of that time. On the basis of this allegation also he seeks a decree adjudging that his title as against Cain and Keshin is complete and unassailable, and that their respective claims as owners of the property in dispute are without legal substance.

At the conclusion of the hearing in the court of chancery Vice-Chancellor Griffin, to whom the case had been, referred, concluded that the complainant had failed in his attempt to establish that in making the sales under the Martin act the procedure provided by that statute had been disregarded in any important particular. And he therefore held that the complainant was not entitled to the relief sought on the first of the two grounds upon which- his bill was rested.

He further considered, after carefully weighing the evidence submitted in support of, and in opposition to, the complainant’s claim of title by adverse possession, that his case failed upon this ground also; and that, instead of his having been in the continuous peaceful occupancy of these two tracts during the twenty years’ period, the weight of evidence was in favor of the conclusion that during most of that period the defendant Cain had been in the possession of the lands claimed by him as fully, openly and notoriously as the character of the lands permitted ever since his purchase thereof in 1902 from the vendee of the city; and that the proofs also failed to show any acts of ownership by him over, or of actual, open, notorious possession of, the tract purchased by Keshin during the twenty years preceding the filing of the bill.

Upon these findings the learned vice-chancellor advised a decree dismissing the bill of complaint, and from the decree entered in accordance with this advice the complainant appeals.

Ho far as the conclusions of the court below relating to the question of the validity of the sales under the Martin act are concerned, we express no opinion either by way of agreement or disagreement. And for this reason: Only nine years after the enactment of the statute of 1870 the court, in the case of Jersey City v. Lembeck, 31 N. J. Eq. 255, declared that the statute did not warrant the filing of a bill in equity to contest the legality of a municipal assessment upon the ground of its being an illegal encumbrance on land; that chancery had no jurisdiction, as a general rule, over such matters; that it had always been one of the exclusive prerogatives of the supreme court to consider and adjudicate upon alleged errors of municipal bodies committed in the exercise of legal or t^m-legal functions in matters which were of a purely legal nature; and that, if the statute had attempted to vest such jurisdiction in the court of chancery, the attempt would have been nugatory, for the reason that it is beyond the power of the legislature to vest in the chancery court any of the fundamental prerogatives of the supreme court. The declaration in Jersey City v. Lembeck has been reiterated very frequently in our later decisions, and in the case of Roe v. Jersey City, 79 N. J. Eq. 645, we pointed out that the doctrine of the Lembech Case was not only applicable but controlling where the complainant sought to obtain an adjudication from the court of chancery declaring that a sale of his property made under the provisions of the Martin act was invalid and a nullity because the proceedings under which it was had were not in compliance with the provisions of that act.

We conclude, therefore, that the court of chancery was without jurisdiction to hear and determine tire question whether the sales under the Martin act, under which the defendants, • Cain and Keshin, rested their claims of title, were valid or invalid.

As to the second ground on which the complainant sought relief, namely, that he had been in peaceful, continuous, open and notorious possession of the lands involved in this controversy for a period of more than twenty years preceding the filing of Ms bill, and that his possession was adverse, so far as these two defendants were concerned, we agree with the conclusion of the learned vice-chancellor that he absolutely failed to sustain the averment of his bill. Our examination of the proofs satisfies us that the great preponderance of the testimony is in favor of the vice-chancellor’s finding.

In the absence of an adjudication, by a court having jurisdiction over the question, that the sales under the Martin act were invalid, the presumption of law is that the defendants, Cain and Keshin, have a good title to the lands in dispute, under those sales; and, as the complainant has failed to sustain his. claim of title by adverse possession, the decree under review must be affirmed.

For affirmance—The Chief-Justice, Swayze, Tuenciiard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbaoii, White, I-Ierpeni-ieimer, Williams, Gardner—13.

For reversal—None.


author: Trenciiard, J.

text:
    Thomas H. Decatur, petitioner-respondent, v. Elizabeth H. Young, defendant-appellant.
    [Submitted March 21st, 1921.
    Decided June 20th, 1921.]
    1. Chapter 178 of laws of 1909 (P. L. p. 270), permitting an appeal to this court by persons adjudged by the court of chancery to be in contempt for acts done or omitted elsewhere than in the presence of the court, does not conflict with any provision of the constitution of New Jersey relating to the jurisdiction of the court of chancery, and is not an unconstitutional exercise of power of the legislature.
    2, Where children, under seven years of age, whose parents had separated, had been left by their father, without his support, in the actual care and custody of their mother, in the household of their grandparents, in this state, and the mother took them with the family to New York, when the grandfather, for business reasons removed there, where they remained in the care and custody of their mother, but at the expense, of the grandfather—Held, in a habeas .corpus proceeding taken by the father (in which the grandmother alone was served with the writ while temporarily in this state), that the mere fact that the grandmother acquiesced in the mother and children accompanying the family, did not operate to transfer the custody or control of the children to the grandmother, nor vest her with power to remove the children from New York and produce them in court in New Jersey, against the will of their mother, and that her failure to do so, or to take any action to that end, is not contempt of court.
    On appeal from an order of the court of chancery advised by Yice-Chancellor Buchanan.

      Messrs. Eatzenbaeh & Hunt, for the appellant.

      Mr. Marry Meher, for the respondent.
   The opinion of the court was delivered by

Trenciiard, J.

This is an appeal from an order of the court of chancery adjudging Elizabeth H. Young guilty of contempt of court and imposing a fine upon her.

The facts and circumstances giving rise to the order are as follows:

Thomas H. Decatur was married in 1912 to Elsie Kathleen Young, the daughter of the appellant, Elizabeth II. Young, and James A. Young, her husband. Two children were born of this marriage, Jay F. and Kathleen, who are respectively six and four years of age. Decatur and his wife and children lived with Mr. and Mrs. Young, in Trenton, until about June of 1920, when Mr. Young, the husband of the appellant and head of the family, required him to' leave the house. Thereafter, Mrs. Decatur and her two ■ children continued to live with Mr. and Mrs. Young, in Trenton, until about the end of September, 1920, when Mr. Young, for business reasons, removed from Trenton to Fredonia, New York, taking his wife, and Mrs. Decatur and her two children went with him. Mr. Decatur was not informed of the removal. lie had at first contributed $3.50 per week to the expenses of the joint household while they were all living together, and afterwards $7 per week; but he made no- contribution after he was expelled from the household in June, 1920. .

On October 21st, 1920, on his petition, a writ of habeas Corpus was issued by the chancellor addressed to James A. Young, Elizabeth II. Young, his wife, and Elsie Kathleen Decatur, commanding the production of the two children above named before the chancellor. This writ was served on the appellant, Elizabeth H. Young, on October 22d, 1920, in Trenton, she having returned from Fredonia for the purpose of packing some furniture for shipment. The writ was not served upon James A. Young or Mrs. Decatur, who remained in Fredonia, New York, with the children.

Mrs. Young made a return to the writ, and on October 26th submitted herself for examination respecting her return. At the conclusion of such examination an order was made requiring her to show cause why an attachment for contempt should not issue against her, and upon the return day thereof, after hearing, the order appealed from adjudging her in contempt was advised by tlie vice-chancellor.

At the outset it is necessary to dispose of the contention of the respondent that the appeal should be dismissed because chapter 178 of laws of 1909 (P. L. p. 270), under which the appeal is taken, is unconstitutional, in that it takes away from the court of chancery one of its constitutional prerogatives. But that is not so. The act in question, permitting an appeal to this court by persons adjudged by the court of chancery to be in contempt for acts done or omitted elsewhere than in the presence of the court, does not conflict with any provision of the constitution of the state relating to the jurisdiction of the court of chancery, and is not an unconstitutional exercise of power by the legislature. Bijur Motor Appliance Co. v. International Association of Machinists, 92 N. J. Eq. 644.

We come now to a consideration of the point made by the appellant that a sufficient and legal reason appeared for her non-production of the bodies of the children in response to the writ of habeas corpus.

Upon careful consideration we are of the opinion that the point is well taken.

Sections 14 and 15 of the Habeas Corpus act (Comp. Stat. p. 2642) required Mrs. Young to make a return to the writ. She' complied with such requirement. Her verified return set forth that she “has npt, and never has had, the' said Jay F. Decatur and Kathleen Decatur, nor either of them," in her custody or under her power or restraint.”

Of course, if true, that return was sufficient and legal reason for her failure to produce the children.

But upon the return coming in the vice-chancellor deemed it advisable to examine Mrs. Young under oath as authorized by section 16 of the act, and upon such examination, and further hearing on the rule to show cause, he considered that “after due service upon her of the writ of habeas corpus,” she “wholly failed to make any efforts to comply with said writ,” and adjudged her in contempt.

It will be seen that it was not considered that Mrs. Young, the grandmother, had or ever had the custody of the children, or either of them, either actually or in any technical legal sense. Obviously, she had not. The children had been left by their father in the actual custody of their mother, their natural custodian under the circumstances, where they remained, with their mother, as a part of the household of the grandparents, and at the expense of the grandfather, until they went to New York with the family when the grandfather saw fit to remove there for business reasons. The children cannot be said to be in the custody of the grandmother or under her power or restraint merely because she acquiesced in their accompanying the family to New York, especially since it appears that the grandmother did not influence her daughter in that course, contributed nothing to that end, and that the mother had and has the actual care and charge of the children in New York where they are supported exclusively by the grandfather.

The learned vice-chancellor recognized that the grandmother had not the “actual legal custody or control of the children,” but considered that she had “sufficient control to have made it necessary for her * * * to do what she could in the exex’eise of that control to see that the children were produced here,” and that, he concluded, she did not do.

After much consideration of the testimony and reflection we are unable to take that view.

No doubt, if the childrexx were within the control of the grandmother and subject to her direction, she was bound to exercise such power of control and produce them in court. But, as we have seen, they were in the custody and under the care and control of their mother in New York. We have pointed out that the mere fact that the mother of the children left this state with her parents, taking her children with her, did not operate to transfer the custody or control of the children to the grandmother, and in oxxr opinion she had no more power to produce these children or to remove them from the State of New York against the will of their mother than any stranger had.

That this is so will be demonstrated by the inquiry, What was the grandmother to do ?

The court below suggested that she should have “endeavored to persuade the mother to bring the childx'en into court,” and that she should have “probably gone so far as to have made it u,n-comfortable for her own husband” if he had refused to exercise coercion upon the mother of the children to that end. But, certainly, under the circumstances, the grandmother was not required to do either of these things. The mother and the grandfather were residing in New York, and had not been served with the writ and were not in court. They were entitled to stand upon their rights under the law of New York.

Moreover, at the hearing on tire rule to show cause, it satisfhctorily appeared that even if the grandmother had attempted to persuade the mother and grandfather of the children to produce them in court, as she did attempt to do after the return of the writ and before the hearing on the rule, such effort would have been fruitless.

The order of the court below will be reversed, with costs.

For affirmance—None.

For reversal—The Chibe-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbaci-i, White, Hepbenheimer, Williams, Gardner—13.


author: Parkhr, J.

text:
    Ezra Sprague et al., complainants-respondents, v. West Hudson County Trust Company et al., defendants-appellants.
    [Submitted March 21st, 1921.
    Decided June 20th, 1921.]
    A party who has endorsed checks to which a prior • endorsement was forged, has no equity to require that the bank on which such checks are. drawn and which has paid them shall refuse to reimburse its depositor after discovery of the forgery, until questions of the depositor’s negligence in examination of returned vouchers and statements of account have been determined in litigation between the depositor and the bank.

      On 'appeal from an order advised by Yice-Chancellor Fielder denying motion to dismiss bill of complaint.

      Mr. Edwin F. Smith and 2lr. Raymond Dawson, for the appellants.

      Mr. Archie II. Ormond, for the respondents.
   The opinion of the court was delivered by

Parkhr, J.

The motion below was to dismiss the bill; and ten grounds weie stated, the Erst of which that it does not make out a case entitling complainants to equitable relief is sufficient for present purposes. Such a motion, under the chancery rules of 1917, like a motion to strike out under the rules of 1910, appears to be the equivalent of a general demurrer. By rule 51, attached to the Chancery act of 1915 (P. L. 1915 pp. 184, 195). appearing as rule 67 in'the rules of 1917, demurrers are abolished, and any pleading “may be objected to, on motion, on the ground that it discloses no cause of action,” &c. Schulz v. Ziegler, 80 N. J. Eq. 199; Weidmann Silk Dyeing Co. v. Water Co., 88 N. J. Eq. 397. Whether the motion is to dismiss a bill as insufficient on its face, or to strike it out, seems now immaterial, as each is an “objection.”

The question, then, is whether the bill shows any ground of equitable relief. It prays that certain banks, in which the corporation of Swift & Company is a depositor, may be restrained from repaying to Swift & Company the amount of certain cheeks charged up to the Swift account and paid by such banks on for’ged endorsement, “until a court of competent jurisdiction has determined that said defendant banks are legally liable thereon.” Several banks are involved and a number of different checks; hut the joinder of these different matters is evidently within the rule of chancery relating to causes of action having a common question of law or fact, &c. P. L. 1915 p. 190 rule 24.

The case made by the bill is this: Complainants are a mercantile firm doing business in Newark. One of their customers was a man named Keoskie. In March, 1920, Keoskie called at complainants’ place of business and introduced a man named Bissell, who he said wanted a check for $1,740.25 cashed, but that he, Keoskie, did not have time to take Bissell to his bank to cash it, and would complainants please cash the check at their bank and let Bissell have the money; that Bissell was all right, and the check was all right, &c. The check purported to be signed, and actually was signed by defendants Swift & Company, or some one authorized to sign for them, was made to a party now called the E. S. Company, as payee, and purported to be endorsed by the E. S. Company. It turned out later that this endorsement was forged. One of the complainants, accepting Keoskie’s statement, went to the complainants’ bank with Bis-sell, endorsed complainants’ name on the check, drew the money, and handed it to Bissell, who then left. Neither Bissell nor Keoskie was requested by plaintiffs to endorse the check.

This performance was repeated six times during the months of March, April and June, 1920, with other checks of Swift & Company, three of which were made out to another payee, but the other circumstances were the same. The amounts varied, but in all the complainants innocently accepted checks of Swift & Company aggregating about $13,000, all of which bore false endorsements, and in exchange for them gave Bissell this money which complainants obtained by endorsing the checks and cashing them at their own bank, without any indemnity from any one, but merely the oral statement of Keoskie that Bissell was “all right,” as noted above.

The explanation of the fraud was that Bissell, a former employe of Swift, in combination with one Martin, then in their emplo3r, got possession of Swift checks to parties to whom Swift owed mone3r, forged the endorsements, and negotiated those in question through Keoskie and complainants. Ultimately, the forgeries were discovered, as they had to be, upon checking up accounts with the banks; and upon such discovery, Swift & Company, in the usual course, made demand on the banks for reimbursement, and the matter was in process of adjustment when the complainants intervened with their bill of complaint, seeing full well that if-the banks repaid Swift, those banks would call for reimbursement from the Sprague bank, and that bank in its turn from complainants. The claim of the bill is that Swift & Company have allowed themselves to be defrauded in this way for many months, running back to November, 1918, and that if Swift & Company had been ordinarily diligent in looking after their banks and their accounts the system would have been, discovered before complainants were ever inducted into it, and that the Swift banks are entitled to, and should, defend against the forgeries on account of this negligence, as in Pratt v. Union National Bank, 79 N. J. Law 117, and Pannonia Building and Loan Association v. West Side Trust Co., 93 N. J. Law 377, and if successful in that defence, complainants will not have to pay. The further point is made in the bill that some of these checks were duplicates and should have been recognized as such at the time or promptly discovered.

We are quite unable to see any equity in favor of complainants. It is true that Swift & Company owed it to their bank, after return of their paid checks, to exercise reasonable diligence and care to examine the vouchers and the account as stated by the bank, and inform it of any errors thus discoverable. Harter v. Mechanics National Bank, 63 N. J. Law 578, 580. But we have never heard that this duty extended to others than the bank. Persons into whose hands a check may come before payment take the risk of forged signatures and forged endorsements, preceding their own. These complainants did not even receive the checks in the ordinary course of business. On the contrary, they went gratuitously out of their way to enable a stranger to get money, by themselves guaranteeing to their own bank by their own endorsement, that the check was good and that the prior endorsements were genuine. There was no privity between them and Swift & Company; all that the latter were interested in was that their bank should not pay out money on their account improperly; and if it did so, the question whether it should respond to Swift & Company is one in which complainants would seem to have no legal or equitable interest. We have seen that a bank which has paid on a forged endorsement may in some case defend against its depositor on the theory of negligence; but we have never heard of this rule being invoked in favor of any one but the depository bank. Its contract with the depositor is to pay its debt to him when and as demanded by checks upon it. As to parties claiming to be payees of those checks, the bank is under no obligation whatever in the absence of certification. National Bank v. Berrall, 70 N. J. Law 757. When the bank has paid on a forged endorsement, it must ordinarily make good to its depositor, and then stands as to all endorsements below that of the forger as a holder in due course. In the present case the writers of the endorsement immediately below the forged one are seeking to intrude into the relation between the bank and its depositor by requiring the bank, for their benefit, to defend against the depositor’s claim. This defence, in our opinion, is for the bank alone, and parties claiming under the payee have no right to require the bank to set it up.

The claim of estoppel set up in the brief rests on the notion that Swift & Company owed the public, including complainants, some duty of care in examining their own accounts and returned vouchers. We know of no such rule, especially in a case where, with absolutely no interest in the matter, the complainants gratuitously put their name on the back of these checks to let a stranger receive the money.

The order will be reversed and the cause remanded with directions to dismiss the bill.

For affirmance—None.

For reversal—The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Williams, Gardner—13.


author: Bergen, J. Minturn, J.

text:
    Bijur Motor Appliance Company, complainant-respondent, v. International Association of Machinists, District No. 15, et al., defendants-appellants.
    [Argued March 9th, 1921.
    Decided June 20th, 1921.]
    The statute of 1909 (P. L. 1909 p. 370) permitting an appeal to this court by persons adjudged by the court of chancery to be in contempt for acts done or omitted elsewhere than in the presence of the court, does not conflict with any provision of the constitution of the state relating to the jurisdiction of the court of chancery, and is not an unconstitutional exercise of power by the legislature.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in ,9.® N. J. Eq. 188.

      Mr. Marie A. Sullivan, for the appellants.

      Mr. Merritt Lane, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

Certain members of the defendant association were adjudged guilty of a criminal contempt for violating an order of restraint made by the chancellor of this state, and as punishment for said contempt the chancellor ordered defendants to be confined in the county jail of one of the counties of this state for a period of three months, and from thence! until a fine of $50, which was imposed upon each of them, be paid to the State of New Jersey. From this order the defendants have appealed to this court, claiming the right to do so by virtue , of a statute of this state (P. L. 1909 p. 270), which declares that

“Whenever any person or corporation shall be adjudged in contempt by the court of chancery of the State of New Jersey, for acts done or omitted, elsewhere than in the presence of the court, and such court shall, in consequence, impose upon such person or corporation any fine or imprisonment or other punishment, such person or corporation may appeal from such adjudication to the court of errors and appeals, which appeal shall be taken and prosecuted, in all respects, as other appeals are taken and prosecuted from the said court of chancery.”

Tlie general purpose of the original bill of complaint was to obtain a decree enjoining defendants from interfering with the free flow of labor seeking, or intending to seek, employment with the complainants. Thereupon a rule to show cause was allowed why a temporary restraining order should not issue in accordance with the prayer of the bill. That order contained a restraint enjoining the defendants, among other things, “from parading in the neighborhood of the plant of the complainants bearing placards or otherwise indicating that a strike is in progress at complainant’s plant, from picketing the place of business of complainant’s.” It being represented that this portion of the order had been violated by the defendants, an order to show cause was allowed why the defendants should not be adjudged guilty of a contempt of the court, and, on the hearing of that rule, the defendants were adjudged guilty, in that they “had picketed the place of business of complainant, and paraded in the neighborhood of the plant of the complainant bearing placards with the inscription ‘General strike on at the Bijur Motor Appliance Co. for a living wage,’ ” in violation of orders of the court made on the 3d day of August, 1920, and on the 17th day of August, 19.20. It is conceded that this appeal would not lie except for the statute of 1909, above cited, but the respondent urges that this statute is unconstitutional and therefore no appeal lies to this court. Without considering the extended arguments urged in the briefs of the respective parties for and agáinst the proposition, we deem it sufficient to say that its constitutionality has been approved by this court in Staley v. South Jersey Realty Co., 83 N. J. Eq. 300. In that case Mr. Justice Garrison, speaking for this court, said that as the law stood prior to the statute of 1909, no appeal would lie from an adjudication of criminal contempt, but that “the legislature has since given a right of appeal, under which the present case is now before us,” and that because of the previous absence of a right of appeal in cases of criminal contempt "the questions that now arise axe, for the most part, res nova in this court,” and thereupon proceeded to the consideration of the appeal taken under the statute of 1909, and reversed the judgment, which could not have been done if the act of 1909 was unconstitutional. The adjudication in that case established the constitutionality of the act, perhaps not in distinct words but by proper implication from the action taken, for it cannot be assumed that this court, in view of the state of the law prior to the act of 1909, would have assumed jurisdiction under that act if unconstitutional.

The appellants, in support of this appeal, argue that the order to show cause recites that the contempt was of an order dated on the 17th of August, 1920, whereas the fact is it was dated on the 16th of August and filed on the 17th. The argument, based on this error in' date in the order to show cause; has no merit, because the record shows that these defendants had notice that the order was in fact made on the 16th, but whether dated on the 16th or on the 17th they had knowledge of its contents and had no right to violate the order which they knew was in fact made on the 16th of August, and which it was charged they had violated before the order to show cause in the contempt proceedings under date of August 25th, 1920, was served, describing the orders violated as made on the 3d and 17th of August, respectively.

The appellants next urged that, although the defendants had violated the order of August 3d, 1920, they could not be adjudged guilty because that order was superseded by that of August 16th, but, manifestly, there is no force in this claim, because they were not convicted of violating the order of August 3d but of the order of August 16th. The recital of the preliminary order of August 3d, in proceedings to enforce a. violation of the restraint in the later order, which was a sequence of the earlier, has no significance, nor was it injurious to defendants.

The next point is, that the rule to show cause was uncertain and confusing because the charge was the violating of clauses M and N of the restraining order, when it was evidently intended to charge a violation of clauses L and M of the order. "We see nothing confusing in this. The defendants knew what they were charged with, and it was for the complainant to prove a violation of either of the clauses, and that the defendants had notice of, and if a violation of either was proven it was enough.

The last point made is, that the proof was insufficient to justify an. adjudication of contempt. We agree with the finding of the court of chancery that there was sufficient evidence to support the adjudication that these defendants were parading with placards and violating the restraint as to picketing.

The order appealed from is affirmed, with costs.

Minturn, J.

(dissenting).

"Upon the preliminary question involving the constitutionality of the act of 1909, I agree with the views expressed in the majority opinion. I dissent from the result reached upon the merits for the reasons following: These defendants, former employes of the complainant, were on strike for what they termed “a living wage.” They did not infest the factory or walk or parade nearer than six hundred feet of it, upon Fourteenth street, one of the most traveled and important highways of the city of Hoboken, terminating at the Hudson river, and there connecting with the ferries to New York. The city itself is so limited in territorial area that it is colloquially termed the “mile square city.” On various occasions during the strike they walked quietly up and down this public highway, sometimes singly and at other times in pairs or more, but never, so far as the record shows, violating airy law or ordinance, but comporting themselves as ordinary wayfarers urpon a public highway. Suspended about their necks they carried placards bearing the words “General strike of the Bijur Motor Appliance Company for a living wage.” The factory was located on a private wray ending in a cul-de-sac. The photographs offered in evidence show the defendants walking on the public highway with the placards suspended about them. In this situation the vice-chancellor, after the filing of the bill, granted an ad interim restraining order directing the defendants to refrain, inter al'ia—

(1) “From participating in any manner whatsoever or from contributing money or advice towards the success of the strike.”

(2) “From advising with, participating in, encouraging, persuading or consulting with” striking employes.

(3) “From addressing persons willing to be employed.”

(4) “From loitering or picketing in the streets or on the highways or public places neat' the premises or near any premises with intent to procure the personal molestation and annoyance of persons employed or willing to be employed.”

(5) “From picketing along the Ilobolcen manufacturers railroad.”

(6) “From parading in the neighborhood of the plant bearing placards or otherwise indicating that a strike is in progress.”

(7) “From going either singly or collectively to the house of any of complainant’s employes for the purpose of intimidating, urging, annoying or coercing them.”

(8) “From ordering, commanding, directing, assisting, aiding or abetting in any manner whatever any person to attempt to commit or to commit any of the aforesaid acts.”

The defendants, manifestly, could not escape from this proscription of human liberties, and continue'to walk the streets, call upon their neighbors, or contribute to their societies, to relieve distress among a striker’s family, and, hence, when they were found walking the public streets they were apprehended in flagrante delicto. This discovery resulted in a rule requiring them to show cause why they should not be punished for contempt, “in that they did picket the place of business of complainants, and parade in the neighborhood of the plant, bearing placards, or otherwise indicating that a strike is in progress at complainant’s plant.”

The complainant’s solicitor was appointed to prosecute them; they appeared inops consülii, and they were convicted and sentenced to the county jail of Mercer county for three months, and thereafter until a fine of $50 shall have been paid by each defendant. From this proceeding the appeal has been taken. It is to be observed, in limine, that the proceeding is entirely criminal in its nature, and subject to the ordinary legal requirements of criminal procedure, and so declared by the adjudications of this court. Upon that fact hangs the illegality of the order appealed from. It is also to be observed that the crime was committed in Hudson county, and that, SO’ to speak, the venue was laid and the trial took place in Mercer county, contrary to all settled law and constitutional right, and these defendants were thus forced across the state, presumably, at great expense to themselves, and tried in one county for a crime committed in another, before a tribunal, as Mr. Justice Garrison has observed in the Staley Case, "which by its constitution is both judge, jury and accuser.” Nor is it to be overlooked in. any estimate of the legality and equity of the procedure invoked that it became necessary in order to reach the trial forum, to pass en route six vice-chancellors, any one of whom presumably could have heard and determined the matter, sitting as they were "in the neighborhood” of the locus in quo.

In Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, this court declared that "a proceeding instituted in the court of chancery, for the purpose of having that court adjudge whether or not, the defendant in a cause pending therein, was guilty of a contemptuous violation of an injunction, is a criminal contempt, in which the defendant is entitled to all of the substantial rights of a person accused of crime, that are consistent with the summary nature of the proceeding, and the processes of the tribunal in which it is administered.”

Mr. Justice Garrison, in his opinion in that case, reviewed the leading authorities upon the subject in the courts of this state, as well as in the federal courts, and declared, as a result of his analysis, that "the relegation of criminal contempts to the courts of ordinary criminal jurisdiction, insured a tribunal in which the functions of prosecutor, judge and jury are exercised by different officers, against none of whom was the contumacious conduct directed; if, however, the conduct is to be punished by the tribunal at which it was aimed, and which by its constitution is both judge and jury, and accuser as well, it is all the more important that there should be a scrupulous observance of the substantial rights of the defendant.”

The order to show cause upon which the defendants were committed for ^contempt, and which answers the purpose of an indictment here, recites as a basis for the commitment “that they, and each of them, did picket the place of business of complainant, and parade in the neighborhood of the plant of the complainant, bearing placards, or otherwise indicating that a strike is in progress at complainant’s plant” in violation of the ad interim restraining order. There is no evidence in the case that the defendants'picketed the complainant’s place of business, or its immediate environment. Nor does any of the photographs offered in evidence exhibit these defendants elsewhere than on the public highway. Manifestly, therefore, the charge or indictment is reduced to the allegation that the defendants exercised the ordinary communal rights of citizens of the city and walked on this main traveled public highway, which is “in the neighborhood” of the locus in quo.

The constitution, article 1, section 8, requires that “in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation.” In Halsey v. State, 4 N. J. Law 324, it was held that an indictment that lays no place where the offence was committed is bad.

To the same effect is State v. Hageman, 13 N. J. Law 314, and Newm. Cr. L. & Pro. 257.

The rule in the federal jurisdiction is explicitly declared that “every ingredient of which the offence is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad and may be quashed on motion, or the judgment may be arrested or be reversed on error.” Pettibone v. United States, 148 U. S. 197.

The same court also declared that, “even in the ease of misdemeanors, the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court, of the exact offence intended to be charged.” Evans v. United States, 153 U. S. 584.

Lord Hale defined an indictment to be “a plain brief and certain narrative of an offence, and of those necessary circumstances that concur to ascertain the fact and its nature.” 2 Hale 169.

Chitty declares that

“it is a general rule that where the act is not in itself necessarily unlawful, but becomes so by its peculiar circumstances and relations, all the matters must be set forth in which its illegality consists.” 1 Chit. Cr. L. 188.

The same writer also declares that “an indictment ought to be certain to every intent, and without any intendment to the contrary.” Ibid. 141.

In consonance with this fundamental rule of pleading it was held by the supreme court, in Allgor v. State, 78 N. J. Law 313, that “in an indictment setting forth an act not malum in so, or malum prohibitum, but criminal only from the aspect given to the act by extrinsic facts, such facts should be alleged by way of inducement or innuendo." Considered in the light of these fundamentals, the requirement in the order at bar that the defendants shall not parade “in the neighborhood” of the looms in quo, is in no manner definitive or informative, and leaves it to each individual to determine for himself the limitations and environment of a “neighborhood;” and^ therefore, counsel, court and defendants may each honestly differ, upon the requirements of a mandate containing no more definite direction or information. Indeed, one might well be considered “in the neighborhood” of the locus, if he were to betake himself to the very boundaries of the mile square city. Violation of such a mandate not sufficing for an indictment at common law, cannot be made the basis for a criminal contempt. In the very recent case in the United States supreme court, State v. Cohen Grocery Co. (advance opinions, April, 1921), the Lever act, upon which the indictment was based, was held unconstitutional, 'in that it left to a court and jury the determination of the question of the reasonableness of price charged by the accused for marketable commodities. The statute made it “unlawful for any nerson willfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries, or to conspire to exact excessive prices for any necessities.”

This legislation was declared to be violative of the fifth and sixth amendments to the federal constitution, because it prescribed “no ascertainable standard of guilt” 'and failed “to secure to accused persons the .right to be informed of the nature and cause of the accusations against them1.” In other words, it was devoid of certainty, and fixed no rule or standard of conduct for the guidance of the accused. For the same reason an indictment, or its equivalent, as presented in the case sub justice, fixes nothing and defines and determines, nothing, but leaves to each actor in the cause the right to determine for himself the limits and extent of an undefined “neighborhood.” Manifestly, these defendants may have been perfectly honest in. their motives, and harbored no intent to contemn the court, but pursued their course upon the assumption, shared by every citizen, that the public streets are common highways, which may be used ad libitum by the citizen, provided he comport himself with the legislation and ordinances regulating the public use. Upon an indictment, such an assumption of innocence and right would be invoked by the trial court to justify and protect defendants, while in this instance the very fact that they exercised such an ordinary public right presents the basis for their conviction.

The recital of these facts suggests that within a few years we have gone to radical lengths in practically excising from the fundamental law some of the basic personal rights which English and American legal and political historjr have rendered sacred, for the purpose ostensibly of vindicating a conception of contractual relationship imbedded in the legal doctrine of master and servant; a relationship which, in its very essence, involves not only the power of volition to contract, but also the power of volition to refuse to serve, when, by association of mind with mind, further service may be considered unjust or onerous from the standpoint of industrial economy or individual preference; a. right of co-operative association and collective persuasion which was conceded to exist by Vice-Chancellor Pitney in Frank & Dugan v. Herold, 63 N. J. Eq. 443, and by Vice-Chancellor Stevenson in Fletcher Co. v. International Association of Machinists, 55 Atl. Rep. 1077, both of which pronouncements reached this court and received its approval.

Were anything further necessary to evince this trend of legal deflection, it is presented in the terms of the restraining order in this case, for in its mandates will be perceived the medieval reasoning underlying the feudal concept of master and servant, which asserted a property right in the human entity, and maintained it in and ont of service, under a segregation of chattel ownership and control; a doctrine which was supposed to have emitted its valedictory in the Dred Scott Case, and to have received its quietus in the Emancipation declaration.

These reasons lead me to favor a vacation of the order appealed from and the discharge of the defendants.

For affirmance—This Ci-úee-Justice, Swayze, Trenchard, Parker, Bergen, Kalisoh, Black, Katzenbaoh, White, Heppenheimer, Williams, Gardner—-12.

For reversal—Minturn—1.


author: Minturn, J.

text:
    In the matter of the application on behalf of Howard F. Streeper.
    [Argued March term, 1921.
    Decided June term, 1921.]
    In a proceeding to obtain the release of one who has been committed as an insane person, it was improper for the vice-chancellor, who found such person to be sane, to direct his commitment to the custody of a guardian on the ground that he was feeble minded, for the la-ys of New Jersey declare that idiots, imbeciles or feeble-minded persons shall not be included among those persons termed insane.
    On habeas corpus upon appeal from chancery.

      Mr. Potcell K. Marlin and Messrs. Wescott .<& Weaver, for the appellant.

      Mr. John Boyd Avis, Mr. Lewis Starr and Mr. Thomas F. McCran, attorney-general, for the appellee.
   The opinion of the court was delivered by

Minturn, J.

On October 12th, 1915, Howard F. Streeper, a man of advanced years, and possessed of some worldly means, was committed to the state hospital at Trenton, as an indigent insane patient. Almost coincident with that proceeding, and as the result of proceedings de lunático inquirendo instituted in chancery, the Gloucester county orphans court appointed a guardian of said lunatic by, which the estate of the alleged indigent, amounting to over $30,000, was entrusted to said guardian to manage and control. Over four years thereafter the indigent was released from the state hospital as cured of his mental malady and was returned to his 'home at Woodbury. Within seven months thereafter he was recommitted upon the application of his wife to the state hospital, and remained there occupying his former status for one year when he was discharged by the order of the vice-chancellor, the form of which discharge presents the basis of this appeal.

The statute (P. L. 1913 ch. 250) under which the discharge was made is .entitled “An act concerning the commitment of insane persons,” and provides, in its thirteenth paragraph, as follows:

“In ease any person is dissatisfied with the refusal of the medical director or other head medical officer to furnish a certificate of discharge admitting the sanity of such person confined in such institution, or in case sucl^ person or any friend or relative, in his behalf, desires to obtain the release of such person from any institution in this state, in which he may be confined, because of insanity, after final commitment therein, in accordance with the provisions of this act, may proceed to apply for his release in accordance with' the provisions of ‘An act regulating tiie practice of writs of habeas corpus, sued out by or in behalf of persons confined in any hospital for the insane, or lunatic asylum in this state,’ approved April 2d, 1898, being chapter 135 of the pamphlet laws of that year, and on the return day of the writ, the justice or judge or other judicial officer hearing the matter shall not discharge said person under such writ, unless it shall be found in such proceeding that such person is sane.”

The laws of 1898 (P. L. 1898 p. 231) provide: “The fact of the sanity or insanity of such person so detained shall be inquired into,” and

“after the proof shall be submitted on both sides, and counsel heard, the justice of the supreme court or other judicial officer aforesaid, shall find and determine whether such person in whose behalf said writ of habeas corpus was sued out, is sane or insane; and no person so confined shall be discharged by the said justice of the supreme court, or other judicial officer granting the said writ, unless he shall find such person to be sane.”

The- act of 1913 further provides “that idiots, imbeciles or feeble-minded persons shall not be included among those termed insane within the provisions of this act.”

The learned vice-chancellor, upon the testimony submitted, including the testimony of Mr. Streeper himself, found him to be sane, but further adjudged that he was feeble minded and committed him to the custody of the guardian theretofore appointed by the orphans court. The latter portion of the adjudication presents the situation upon which the appeal is based, the contention being that the proceeding is entirely statutory, and that the statute affords no basis for. the secondary commitment ,to the guardian. We think this contention must prevail.

The statutory proceeding is designed, manifestly, to enable one restrained of his Eberty for a reason, which, in its inception, may properly result in his commitment and detention so long as the cause thereof subsists, to show by satisfactory proof that the superinducing cause of his detention no longer exists, and that he is therefore entitled to his liberty. When the petitioner’s status of mentality has been adjudged and determined, the statutory power conceded in such a situation is exhausted.

The fact of his sanity having been determined in his favor.by the learned vice-chancellor, the result automatically follows that the petitioner is entitled to receive his unconditional discharge from the state hospital.

To that extent the order under review will be modified.

For affirmance—White—1.

For reversal—None.

For modification—The Chiee-Justice, Swayzb, Trenchard, Parker, Bergen, Minturn, Black, Katzenbach, Heppenheimer, Williams, Gardner—11.


author: Kalisci-i, J.

text:
    Charles Sayre and Minnie Feldmesser, complainants-respondents, v. Samuel Lemberger et al., defendants-appellants.
    [Submitted at March term, 1921.
    Decided June 20th, 1921.]
    1. In the absence of fraud or mistake a resulting trust cannot arise in favor of one who in purchasing land voluntarily directs and causes the deed therefor to be made and given to and in the name of a third party, absolutely.
    2. Where such a deed is made and given, one who subsequently enters into a written agreement with the party making such deed to buy the said land from him cannot acquire any greater right to question the efficacy of the deed, than the person with whom he made his contract had.
    3. Where a conveyance is taken in the name of a third party for the purpose of protecting the property from creditors of him who furnished the money, the conveyance is unassailable inter partes.

    On appeal from a decree advised by Vice-Chancellor Foster, whose opinion is reported in 92 N. J. Eq. SIS.

      Mr. Joseph Siegler and Mr. Philip J. Schoiland, for the appellants.

      Mr. Frank E. Bradlner, for the respondents.
   The opinion of the conrt was delivered by

Kalisci-i, J.

This -appeal is from a decree of the court below adjudging that Ida Klein, a sister-in-law of the defendant Samuel Lemberger, holds in trust for the latter certain premises on Hillside avenue, in Newark, and decreeing specific performance of a contract in writing by the terms of which the .defendants Lemberger and wife agreed to sell to complainants the premises above mentioned for the sum of $15,000.

The contract referred to was signed by the defendant Lemberger and! his wife as prospective vendors, and by Charles Sajue and Minnie Feldmesser as prospective vendees.

The theory of a resulting trust to Lemberger was evolved by the learned vice-chancellor from assuming that at the time of the conveyance of the premises in question to^ Ida. Klein by Edwin A. Kirch, Lemberger paid the whole of the consideration therefor. We search in vain through the record to find any testimony justifying such a theory.

The evidence discloses that Ida Klein, prior to the transaction, which is made the basis of the present suit, was the owner of property on Amherst street, in the city of East Orange, which property had been convej'ed to her by Lemberger, in April, 1914, subject to the payment of three mortgages, aggregating $4,800, and for $800 in cash in addition thereto.

In 19.16 .Miss Klein conveyed the Amherst street property to Kirch as part consideration of the Hillside avenue property conveyed to her by Kirch. The price for the Hillside avenue, property was $12,000 and was paid as follows: The Amherst street property was put in at the value of $5,700, and at the time it was conveyed to Kirch the property'- was subject to a mortgage of $3,800 held by a building loan association, which mortgage had been reduced by payments thereon to $3,400, leaving an eqrrity in the property of $2,300; the sum of $700 was paid in cash, and the Dime Savings Bank loaned upon the property conveyed by Kirch to Miss Klein upon her bond and mortgage $7,000, which sum was turned over to Kirch, and for the balance of $2,000 required to make up the $12,000, the price at which the property was purchased by Miss Klein, she gave a second mortgage on the property, together with her bond, to Kirch.

But even if it be assumed that the vice-chancellor was right in holding, that Lemberger was the true owner of the equity in the Amherst street property, which equity was valued at $2,300, and' that the sum of $700 which was paid to* Kirch was Lemberger’s money and not Miss Klein’s, all that that could establish would be that Lemberger contributed $3,000 to the purchase of the Kirch property. The undisputed fact, however, remains that the balance of the consideration, $9,000, came from Miss Klein, who not only gave the mortgages on the property, but obligated herself by her personal bonds for the payment of the last-mentioned sum; and, therefore, to that extent, at least, she had an interest in the property conveyed to her by Kirch. Now, in this posture of affairs, even though it be conceded that a resulting trust, under certain circumstances not present here, might have arisen from the transaction in favor of Lemberger, it is quite obvious that such a-trust could be for no greater interest in the propert}r than the $3,000 purchased, and, hence, would not justify a decree covering the entire property, as was erroneously made by the vice-chancellor.

A careful consideration of the testimonjq and of the well-defined legal principles applicable to the proof in the cause, makes it manifest that no resulting trust was established in favor of Lemberger. For it is not pretended that the deed made bj'’ Lemberger conveying the Amherst street property to Miss Klein was either the result of a mistake on his part or of fraud practiced upon him, but, on the contrary, it appears that the deed of conveyance made by him was a voluntary act. Ity that act Miss Klein, as against her grantor, became the owner in law and in equity of the Amherst street property. If Lemberger had filed a bill against his grantee to have a resulting trust declared in his favor, he could not, under the adjudged cases, have succeeded in his suit. Plow, then, can the complainants who stand in privity with Lemberger, by contract, possess any greater right than he, himself, has?

In Baldwin v. Campfield, 8 N. J. Eq. (at p. 903), Mr. Jnstice Elmer, in speaking for this court, said: “The trust which results from the mere fact that one person pays the purchase-money of land conveyed by the seller to another is considered as coming within the exception in the statute of trusts which arise or result by implication or construction of law. But no trust arises upon a man’s own deed, no matter whether there war-in fact any consideration paid or not, as between the- parties, a voluntary deed is just as binding as any other.”

In Down v. Down, 80 N. J. Eq. 74, 75, Vice-Chancellor Learning has collated the cases decided in this state dealing with the subject of resulting trusts, and a consultation of the cases referred to establishes that the doctrine enunciated in Baldwin v. Campfield, supra, is thinly rooted in our jurisprudence.

In the light of these cases the legal situation was, at the time of the conveyance of the Kirch property to Miss Klein, that she was the absolute owner of the Amherst street property, her equity therein being valued and taken at $2,300, and it was with this property and the proceeds of a $7,000 bond and mortgage which she executed and gave to the Dime Savings Institution, and a bond and mortgage for $2,000 which she made and gave to Kirch that she paid for the property in litigation, and received a deed therefor. We do not think that the payment of $700, which was necessary to make up the $12,000, the price at which the Kirch property was sold, even if the money was Lemberger’s, is of any vital importance. If it was his money, as the court below thought it was, but which we do not decide, the payment by him, as disclosed by the testimony, was not of itself under the circumstances then existing sufficient to create a resulting trust in his favor, in the absence of any proof or circumstance indicating that there was an agreement or understanding to the effect that he was to have an interest in the propert}7, and because what occurred was subject to a reasonable inference that the money was advanced to his sister-in-law as a gift or loan.

But there is another aspect of this ca,se which should have defeated the complainants’ suit for relief.

It appeared that at the time the conveyance was made, and the title put in the name of Ida Klein, there were several judgments outstanding against Lemberger, and if in that situation he had the title put in Ida Klein’s name, it was in fraud of creditors.

In Cutler v. Tuttle, 19 N. J. Eq., Mr. Justice Depue, in speaking for this court (at p. 562), said: “No principle of law is better settled in this state than that a conveyance, designed in fraud of creditors, is good inter partes. In this court, in Baldwin v. Campfield, 4 Halst. Ch. 891, it was held that the implication of law, that the grantee takes a conveyance in trust for a person who furnishes the purchase-money, may be rebutted by proof that the title was put in the grantee for1 the purpose of protecting the property from creditors of him who furnished the purchase-money.”

For the reasons stated the decree must be reversed, with costs, and remitted to the court of chancery with direction that the bill be dismissed, with costs.

For afftrmcmce—Bergen—1.

For reversal—Ti-ie Chiee-Justtce, Swayzb, Trenchard, Parker, Minturn, Kaliscti, Black, Eatzenbach, Whtte, . I-Ieppbni-ieimer, Williams, Gardner—12.


author: Kalis cu, J.

text:
    Florence Doty, petitioner-appellant, v. Elmer E. Doty, defendant-respondent.
    [Submitted March term, 1921.
    Decided June 20th, 1921.]
    1. A husband’s conduct to justify ibis wife in leaving him, need not consist of actual physical violence, but is sufficient if it endangers her life or health, or renders her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife.
    2. In a wife’s action for divorce on the ground of desertion, evidence that her husband frequently became intoxicated, preventing him from having steady employment and providing necessities for his Wife and children, that he called the wife vile names and charged her with infidelity, that he introduced dissolute men and women in his home and caroused with them till one or two o’clock in the .morning, at which time much indecent and profane language was used, and that the wife, by reason thereof, was unable to obtain proper sleep, and lost her health— Held, to establish constructive desertion on the part of the husband, such conduct being sufficiently cruel to justify his wife in leaving him.

      On appeal from a decree of the court of chancery dismissing the petitioner’s petition for divorce.

      Mr. Robert Newton Crane, for the appellant.
    No appearance for the respondent.
   The opinion of the court was delivered by

Kalis cu, J.

The appeal in this cause presents the question whether the testimony taken at the hearing before the special master was sufficient to warrant a decree in the petitioner’s favor upon a petition filed by her for a divorce from her husband based upon the statutory ground of desertion. The advisory master who reviewed the testimony taken and the findings thereon by the special master thought it was not, and advised a dismissal of the petition, which was decreed by the court below accordingly.

For the appellant it is contended that the decree is erroneous, in that under the evidence adduced and the settled law applicable thereto a case of constructive desertion was established which entitled the petitioner to the relief prayed for.

The petitioner left her husband. She asserts that she was compelled to leave him because of his cruel conduct toward her. In this she stands fully corroborated by other witnesses. What that cruel conduct must consist of in order to justify a wife to leave her home seems to us was well stated by Vice-Chancellor Van Fleet in Black v. Black, 30 N. J. Eq. (at p. 221), where that learned jurist said: “To justify a divorce a mensa et thoro, actual physical violence need not be proved, but such conduct, by the husband, must be shown as will justify the court in believing that, if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or her health will be endangered, or that he will fender her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. Close v. Close, 10 C. E. Gr. 529; English v. English, 12 C. E. Gr. 585.”

This legal rule was approved and applied by this court in Smith v. Smith, 40 N. J. Eq. 595, a case for divorce upon the ground of extreme cruelty.

The facts of the present case, as developed by the testimony, briefly stated, are, that the parties were married in December, 1909, and cohabited together until August 17th, 1917, during which period a male child was born to them, who, at the time of the filing of the petition, was seven year’s of age. That on the date last mentioned the petitioner-appellant was compelled to leave her home and take her child with her by reason of a long course of her husband’s persistent abuse of her which resulted in breaking down her health and causing her to be afflicted with a serious nervous trouble, that threatened to permanently destroy her health and comfort if she continued to live with her husband. That some of the misconduct of the husband consisted in his becoming frequently intoxicated which prevented him from having steady employment and thus brought about idleness and its natural consequence inability for long periods of time to provide even the necessaries of life for his wife and child: that he called his wife vile names and charged her with infidelity to her marriage bed; that he introduced dissolute men and women into his home and caroused with them until one and two o’clock in the morning, in which carousals much indecent and profane language was used so that the petitioner, who had repeatedly protested in vain to her husband against such behavior, was unable to obtain proper sleep- and rest at nights which rapidly undermined her health.

We think the conduct on part of the defendant justified the petitioner in leaving her home, and to stay away from him until he gave her the assurance that he would mend his conduct, and would treat her with that love and affection such as a wife should be treated, and ask her to come back and live with him, in a home which he was willing and ready to provide for her. This he never did. From aught that appears, the husband never expressed any contrition for his treatment of the petitioner, and never offered to alter his behavior toward her for the better, and to abandon his dissolute habits and companions, and made no bona fide effort to have her come back and live with him, but, on the contrary, it appears, uncontradicted, that not only has he failed to contribute anything toward the support of his wife and child, or even offered to do so during the years of separation, but has added to his misdoings by taking up improperly with the companionship of another woman.

We think the petitioner established a clear case of construe1 five desertion and therefore she was entitled to the relief prayed for in her petition.

The decree must be reversed and the record remitted to the court of chancery, in order that a decree for divorce be granted by it to the petitioner in accordance with the prayer of her petition, with costs.

For affirmance—None.

For reversal—Tub Chibe-Justice, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Kaliscii, Black, ITatzenbach, White, ITeppeni-ibimer, Williams, Gardner—13.