text:
    Emma W. Cook et al., executors, &c., v. William W. Weigley et al.
    [Decided January 27th, 1905.]
    1. The status of land and immovable property, together with its title and the incidents thereof, is subject to the adjudication of the courts of the sovereignty within the boundaries of which the property is located.
    2. Where an owner of islands in the Hudson river described them in a mortgage as lying within the State of New Jersey, the courts of New Jersey had jurisdiction of a proceeding to foreclose the mortgage, in the absence of evidence that in 1834, the date of the boundary agreement between New York and New Jersey, the lands mortgaged were under the jurisdiction of the State of New York, within the provision of that agreement that New York should retain its jurisdiction over specified islands, and also over the other islands then under the jurisdiction of that state.
    3. Where foreclosure proceedings resulted in a decree for complainants, which was affirmed by the court on appeal, the jurisdiction of the court to make the decree entered in accordance with the mandate of the court on appeal could not be attacked for the first time upon a simple petition, verified in a general form, and without evidence of the facts upon which want of jurisdiction was claimed to rest.
    On petition, &c.

      Messrs. Vroom, Dickinson & Scammell and Messrs. Anderson & Anderson (of the New York bar), for the petitioners.

      Mr. Frank Durand and Mr. W. W. MacFarland, for the respondents.
   Bergen, V. C.

The defendant Weigley, claiming to be the owner of Oyster island and Bobin's reef, islands surrounded by the waters of Hudson river, mortgaged them to the complainants. Proceedings were instituted in this court for the foreclosure of the mortgage, and answers were interposed by the mortgagor and the International Docks Terminal Railway Company, the latter defendant having purchased a portion of the mortgaged premises with notice of'and subject to the mortgage. The foreclosure suit resulted in a decree for the complainants, from which an appeal was taken to the court of errors and appeals, where it was affirmed and remitted to this court for enforcement. After such affirmance a petition was presented to this court, which, after reciting the foregoing facts, charges that notwithstanding such decree a title to the mortgaged premises cannot be had by virtue of the sale directed by said decree, because this court has no authority to order the lands to be sold, the jurisdiction thereof belonging exclusively to the State of New York, and prays that the execution be stayed; that it be declared that this court has no jurisdiction to decree the foreclosure and sale of the mortgaged premises, and that the bill of complaint, with the subsequent proceedings had thereon, be dismissed.

It is sought to support this petition by invoking the aid of article 2 of the act confirming an agreement between the commissioners appointed by the governors of the States of New York and New Jersey, respectively, for the purpose of settling the jurisdiction and territorial limits of the two states. The article reads as follows:

“The. State of New York shall retain its present jurisdiction of and over Bedlow’s and Ellis’ islands, and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned,- and now under the jurisdiction of that state.”

The first article of the agreement establishes the boundary line between the two states, and without doubt the mortgaged premises lie to the west of that line and within the territorial limits of this state, but the petitioners urge, with great earnestness, that the lands are embraced within the description “other islands lying in the waters above mentioned,” and that the exclusive jurisdiction retained by the State of New York effected a modification of the boundary line so far as these islands are concerned, and that the words “exclusive jurisdiction” imply state sovereignty. This contention, however, has been disposed of, contrary to the insistment of the petitioner, by the supreme court of this state, in Central Railroad of New Jersey v. Mayor, &c., of Jersey City, 70 N. J. Law (41 Vr.) 81, and declares the law oh this subject, under which I am bound to hold, that the property in question is within the territorial limits of this state, and under its sovereign power. It is elementary law that the status of land and immovable propertjq together with its title and incidents thereof, is subject to the adjudication of the courts of that sovereignty within the boundaries of which it is located. These lands, being within the boundary of this state, and so recognized by the mortgagor, who in his mortgage describes them as tying within the county of Hudson, in the State of New Jersejq it seems to me that in the absence of any proof showing that in 1834 the lands in controversy were under the jurisdiction of the State of New York, we are justified in assuming that they were not, and that it is within the jurisdiction of our courts to determine their status and title, with “its incidents and the mode in which they may be charged or conveyed.” Bullock v. Bullock, 52 N. J. Eq. (7 Dick.) 561. But under the view I take of these proceedings, it is not necessary that I should rest my conclusion upon the determination of this question.

The present proceeding raises no question of title; it only challenges the jurisdiction of the court, which objection is now interposed after a protracted litigation in this court and in the court of errors and appeals, and should have been raised in the first instance, because everything that is now urged was then within the knowledge of the petitioner, and I am now- asked upon a petition, verified in the most general form, and without evidence of the facts upon which want of jurisdiction may rest, to vacate and annul a decree of this court entered by direction of a court of review. This I do not feel justified in doing in this summary way. The adjudication of the court of errors and appeals implies not only that it had jurisdiction, but that it heard and determined that question, for it cannot be assumed that it would proceed without it, and to overcome that solemn judgment a more formal method of reviewing the present decree should be instituted. In addition to what has been said, there is nothing in the record to show that the mortgaged premises are islands within the description used, over which it was agreed the State of New York should retain exclusive jurisdiction. On the other hand, the bill and answers alleged that the lands are in this state, and therefore within the jurisdiction of this court.

For the reasons above stated, I will advise an order dismissing the rule to show cause.


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Thomas B. Barry et al. v. Paul E. Moeller et al.
    [Filed October 24th, 1904.]
    1. Directors of a corporation who participate in sales of the company’s property to themselves may be required, at the suit of stockholders, to account therefor and pay to the corporation the difference between what was paid and the cost in each instance, plus a profit to be determined by the facts in the case. No demand upon the directors need be shown if at the time of the institution of the suit the corporation is under the control of those from whom the complainant seeks recovery.
    2. In such suit the corporation is a necessary party defendant.
    3. The period of accounting is properly extended back over a period of at least six years from the time of bringing suit, that coinciding with the period for which recovery might be had in an action at law.
    On bill, &c.

      Mr. Charles E. Hendrickson, Jr., and Mr. John Griffin, for tlie complainants.

      Mr. Mungo Currie and Mr. Cyrus C. Miller (of the New York bar), for the defendants.

      Mr. Albert I. Drayton, receiver, fro se.

   Garrison, V. C.

This is a bill filed on the 5th day of May, 1902, by Thomas B. Barry and others, stockholders of the American Decalcomania Company, against Paxil E. Moeller, Frank Fechteler, J. Valentine May, Herman C. Pfeil, George Mettler and John Poach, directors of the American Decalcomania Company.

It is alleged that Moeller, Fechteler and May were directors of the American Decalcomania Company and were members of the firm of Palm, Fechteler & Company, and that as such directors they caused articles manufactured by the said company, of which they were directors, to be sold to the firm of Palm, Fechteler & Company, of which they were members, at prices so low as to constitute a fraud upon the stockholders of said Decalcomania company.

The purpose of the bill is to obtain an accounting from said Moeller, Fechteler and May of their dealings with the American Decalcomania Company, and a decree for the amnunt which the company should have received for the articles purchased by Palm, Fechteler & Company from the American Decalcomania ■ Company.

An answer was filed on behalf, of the six directors above named and by Moeller, Fechteler and May, individually, and as partners as Palm, Fechteler & Company.

Subsequently, and on the 1st day of July, 1904, an order was made making Albert I. Drayton, the receiver of the American Decalcomania Company, a party defendant to this suit, and upon the 2d day of July, 1904, he filed an answer, setting up that he has settled the affairs of the corporation, filed his account, paid all the debts and paid fix the stockholders a dividend of twelve per cent., but had not yet been discharged, and asking the court to order any moneys that may be decreed to be paid by the defendants in this cause to be paid to him as receiver to be by him held and distributed under the directions of this court.

From the pleadings and proofs it appears that iix the year 1890 the American Decalcomania Company was incorporated under the laws of New Jersey with a capital stock of $15,000, and that it commenced doing business at Camden, New Jersey.

There were two large concerns in this country dealing in decalcomania — one trading as Palm Brothers & Company and the other as Palm, Fechteler & Company.

In 1894, the individuals composing these two firms, or some of such individuals, bought a controlling interest in the capital stock of the American Decalcomania Company and elected a majority of the directors of that company.

The undoubted purpose of this was to control the American Decalcomania Company.

The business was moved to Hoboken.

After such control had passed into the hands of the members of the twro firms named each of said two firms commenced dealing with the company, and obtained their wares from ..the company at prices fixed by themselves.

From 1894 down to the time when the American Decalcomania Company became insolvent and went into the hands of a receiver appointed by this court, the financial affairs of the company and its practical operations were largely, if not solely, directed by Mr. Moeller, and, as far as appears from the proofs, the directors do not seem to have interfered with or regulated in any way his management of the company.

Under such management the acts complained of in this bill occurred.

The inquiry in this proceeding was directed to a period six years anterior to the filing of the bill, and it was shown that from 1896 to 1901, inclusive, the following were tire total sales of the company’s product, and that of such sales the amounts indicated in the table were sold to Palm, Fechteler & Company, and that in each year the profit or loss was that which is stated in the table with respect to each year:

Tear runs from. September to September. 1896. Sales, $15,412.67. Sales to Palm, Fecliteler & Co.... Loss of $4,063.48. $1,183 43
1897. Sales, $19,886.70. Sales “ “ “ “ .... Gain of $695.39. 9,768 00
1898. Sales, $20,601.82. Sales “ “ “ “ .... Gain of $1,433.40. 15,885 68
1899. Sales, $16,693.24. • Sales “ “ “ “ .... Loss of $1,727.96. 13,839 95
1900. Sales, $16,056.73. Sales “ “ “ “ .... Loss of $1,755.23. 11,938 74
1901. Sales, $22,792.11. Sales “ “ “ “ .... Gain of $6.75. 20,496 98

There was testimony from which it appears that various orders were filled for Palm, Fechteler & Company at the cost indicated in the left-hand column of the following table, which were sold to Palm, Fechteler & Company at the prices stated in the right-hand column of said table:

Cost, $73.80. Sold to Palm, Fechteler & Co. for...............$55 89
“ 77.88. “ “ “ “ “ “............... 69 20
“ 35.75. “ “ “ “ “ “............... 30 27
“ 101.75. “ “ “ “ “ “............... 48 84
“ 20.28. “ “ “ “ “ “............... 10 00
“ 43.70. “ “ “ “ “ “............... 25 00
“ 41.50. “ “ “ “ “ “............... 20 00
“ 101.00. “ “ “ “ “ “............... 92 64

while orders filled for Palm Brothers & Company cost the amounts indicated in the following table, and were sold to them at the prices indicated:

Cost, $32.20. Sold tó Palm Brothers & Co. for................ $43 40
“ 63.51. “ “ “ “ “ “................ 85 80
“ 8.50. “ “ “ “ “ “................ 15 00
“ 12.50. “ “ “ “ “ “................ 16 00

and another sale, apparently taken at haphazard, showed that an order from the Household Sewing Machine Company cost $219.50 to fill and was sold for $325.

I find from the undisputed testimony in the case that twenty-five per cent, is a fair amount to add to the cost for profit, The complainants stated this as their minimum, and a much larger sum as a maximum profit which should be added, and the defendants not only did not dispute this, but their practical witness (Mettler) stated that from twenty-five per cent, to thirty per cent, was the proper amount to add for profit.

It will be seen by the briefest inspection of the foregoing tables that a substantial addition by way of profit was made with respect to sales to others, while in the cases of the sales to Palm, Fechteler & Company there was, in each of the instances given, a loss to the company on each sale.

' Sufficient of the sales to Palm, Fechteler & Company were investigated to demonstrate the necessity of having all the sales to that firm during the period complained of investigated, and to that end an accounting is necessary.

It is undoubtedly the law that those directors who participated in the sales of the company’s property to themselves should account to the company and should -be required to pay the difference between what was paid in each instance and the cost in each instance, plus a profit, which profit I find in this case should be twenty-five per cent, of the cost.

The right of the complainants to institute the suit depends upon whether the corporation was, at the time the suit was instituted, under the control of those from whom the complainants seek a recovery.

If such was the case, then stockholders, such as these complainants were, have the right to institute the suit.

I find that the American Decalcomania Company has, since 1894, been under the control of the individual members of Palm, Fechteler & Company and Palm Brothers & Company, and that practically the members of tire firm of Palm, Fechteler & Company have managed and had control of its affairs.

The corporation itself was a necessary party defendant, and if the bill had been demurred to upon this ground I think the demurrer would have been good.

Since the company has been declared to be insolvent and a statutory receiver appointed for it by this court, and that receiver is now a party to the action, I am of opinion that the suit may be maintained.

With respect to the length of time for which the several defendants found to be guilty of abusing their trust as directors and benefiting by sales, made to themselves are chargeable, I find that they are chargeable for different periods.

This does not create any embarrassment in administering relief, because the decree will regulate and provide the periods for which each defendant shall be held responsible for the sales made during the period of his directorship.

The complainants seek to go back six years from the date of the filing of the bill, and I see no reason why they should not be permitted to recover the unlawful profits made by the directors out of the corporate business during that period.

It coincides with the period for which recovery might be had in an action at law, and the complainants do not appear to have been guilty of any laches since they do not appear to have had any knowledge or notice until shortly before the time of filing their bill of complaint. -

Until an accounting is had and it is made to appear what sales were made by the corporation to Palm, Feehteler & Company under the directions of the members of that firm who were directors of the corporation, it is not possible to state what decree should be made against the several defendants.

It is necessary that an accounting be had, and that in such accounting there should appear the cost to the corporation of filling each order of Palm, Feehteler & Companjq and the price paid b3r Palm, Feehteler & Compaq to the corporation for each order, and where such price does not equal the cost and twent3rfive per cent, profit there should be calculated the cost and tweihy-five per cent, profit.

Upon the coming in of this report the court will make a decree in accordance with these conclusions and the facts as they then appear.

This accounting should be made before a master of this court to whom I will refer the same.

In so far as the principles applied in this case require citation of precedents the following authorities are in point:

“Stockholders may bring suits in their own name to enforce a right of the corporation without first requesting the directors to sue, when it is made to appear that if such request had been made it would have been refused, or, if granted, that the litigation following would necessarily be subject to the control of the persons opposed to its success.” Knoop v. Bohmrich, 49 N. J. Eq. (4 Dick.) 82 (Vice-Chancellor Van Fleet, 1891); affirmed on appeal, 50 N. J. Eq. (5 Dick.) 485; Cook Stock. § 645.

And such stockholders are not held to be in laches unless they have unreasonably delayed proceeding after knowledge of the facts. Cook Stock. §§ 732, 733.

The company is an indispensable party to a suit of this nature. Gook Stock. § 738.

And the money recovered goes to the corporation and not to the individual complainants. Landis v. Sea Isle City Hotel Co., 53 N. J. Eq. (8 Dick.) 661 (Court of Errors and, Appeals, 1895).

The directors are trustees for the stockholders and will be compelled in equity to account for profits illegally made by them out of their dealings with the corporation. Cook Stock. § 653; Thomp. Corp. Off. § 4009 (particularly § 4070); Redmond v. Dickerson, 9 N. J. Eq. (1 Stock.) 507 (Court of Errors and Appeals, 1853); Citizens’ Loan Association v. Lyon, 29 N. J. Eq. (2 Stew.) 110 (Chancellor Runyon, 1878); Gardner v. Butler, 30 N. J. Eq. (3 Stew.) 702 (Court of Errors and Appeals, 1879).

And in cases where sales of property of the corporation are made to the directors the latter are charged with the full value of the property received, the contract price as fixed by the wrong-doers being entirely disregarded. Cases last cited and Wilkinson v. Bauerle, 41 N. J. Eq. (14 Stew.) 636 (Court of Errors and Appeals, 1886).

All the parties guilty of the fraud need not be joined. Stockton v. Anderson, 40 N. J. Eq. (13 Stew.) 486 (Vice-Chancellor Bird, 1885); cited with approval in Trenton Passenger Railway Co. v. Wilson, 53 N. J. Eq. (8 Dick.) 579 (Vice-Chancellor Emery, 1895).

And the court will discriminate among the directors and only hold those responsible for the wrongful acts who were trustees at the time of the commission of such acts. Ackerman v. Halsey, 37 N. J. Eq. (10 Stew.) 356 (Chancellor Runyon, 1883).

The terms of the decree ordering the accounting will be settled on notice.


text:
    Aaron Van Houten v. Mary V. H. Stevenson et al.
    [Filed October 28th, 1904. J
    1. The objection that another suit is depending for the same matter is, in genera], taken by plea and not by motion.
    2. The complainant and defendant are tenants in common of a piece of land, and the complainant holds a mortgage on the undivided interest of the defendant. The complainant filed a bill to foreclose his mortgage, and the defendant filed a plea thereto setting up the pendency of a partition suit brought by the defendant against the complainant affecting the said premises and other lands, but not making the complainant, as mortgagee, a party. — Held, that the record does not show another suit pending for the same matter, and therefore the plea must be overruled.
    On hearing on bill, plea, replication and proofs.

      Mr. Frederick W. Van Blarcom, for the complainant.

      Mr. Preston Stevenson, for the defendants.
   Garrison, V. C.

The bill in this case is filed to foreclose a mortgage given by Mrs. Stevenson and her husband to the complainant upon the undivided one-sixth interest of Mrs. Stevenson in property owned in common with the complainant.

To this bill of foreclosure a plea is interposed by the defendants setting up1 the pendency of another action.

To this plea a replication was filed and proofs were taken by the defendants to sustain the allegations of the plea.

By joining issue on a plea a complainant admits the sufficiency of the facts stated as a defence if they are proven to he true. Hunt v. West Jersey Traction Co., 62. N. J. Eq. (17 Dick.) 225 (Vice-Chancellor Grey, 1901).

If their truth be established by the evidence, the complainant’s bill must be dismissed as to the defendant who files the plea. Hunt v. West Jersey Traction Co., supra.

Where the proceedings in the former suit are exhibited before the chancellor, either by the averments of the plea or otherwise, he may determine the matter without tire delay of a reference to a master. Griffing v. Griffing Iron Co., 61 N. J. Eq. (16 Dick.) 269 (Chancellor Magic, 1901).

The proceedings in the former suit were exhibited to the court in the suit at bar.

The former suit, the pendency of which is alleged by the defendants to be a bar to the present suit, was a partition suit instituted by Mrs. Stevenson some six years ago.

A prior application to stay the proceedings in the foreclosure suit (that is, the suit at bar) was made by the defendants upon the same grounds relied upon to sustain the plea filed in this suit, namely, the pendency of the partition suit.

That application to stay came on before Vice-Chancellor Stevens, and his conclusions, which were filed on the 19th day of July, 1904, so clearly state the facts and the principles of .law applicable thereto that it is unnecessary that they should be here repeated.

While he found, as a matter of practice, that the objection of the pendency of the other suit should generally be made by plea and not by motion, he nevertheless decided that even if it might be raised by motion, the motion in this suit could not prevail.

The same reasons which induced him to overrule the motion are potent in respect to the plea.

I can perceive no change in the situation from that which was presented to Vice-Chancellor Stevens on the motion, and since his conclusions overruling the motion are grounded upon the same reasons as, lead me to find against the defendants upon the plea, I refer to the opinion of Vice-Chancellor Stevens as giving my reasons for my conclusions in the determination of this issue.

The result is that the plea must be overruled, and I will so advise.


text:
    Gustav W. Lembeck v. Jarvis Terminal Cold Storage Company.
    [Filed November 19th, 1904.]
    1. In the absence of fraud, the lien of a common carrier for freight is lost by an actual delivery to the consignee.
    2. Where a carrier delivers goods to a consignee, who agrees to hold them until the freight charges are paid, the agency thus created, if any, is for collection only, and after the charges are received by the consignee, the carrier cannot assert any claim against a third person acquiring an interest in the goods without notice of such claim.
    3. A carrier delivered goods to a consignee without receiving payment of freight, and petitioner acquired rights therein, as pledgee, without notice of a claim for freight, and on delivery to them they deposited the amount of the freight under an agreement that the right thereto be settled afterwards. Petitioner sold the goods and brought a suit to recover the deposit, based on the question of priority of liens. — Held, that the defendant could not, in such action, raise the question of its right to the surplus remaining in the hands of the petitioner after said sale by it.
    Heard on petition of Sanborn-Farrell Company et al., answer of Erie Railroad Company, and proofs.
    The main case was an action to have tlie Jarvis Terminal Cold Storage Company enjoined and a receiver appointed, under tlie Corporation act, .upon tlie ground of insolvency.
    At the time of the appointment of the receivers there was in the warehouse of the defendant company certain property which had been shipped by Gardemann & Jnngclaus to the Jarvis Terminal Cold Storage Company.
    The Sanborn-Farrell Company were removing this property in parcels or installments under orders authorizing them to do so, which orders were given to them by.Gardemann & Jnngclaus.
    The Erie Railroad Company claimed a lien upon the property for freight charges, and thereupon the receivers of the Jarvis company refused to permit the remaining portion of the property to be removed, and a stipulation was entered into between the parties which reads as follows:
    “Received, Jersey City, April 30tk, 1904, from Sanborn-Farrell Company, seven hundred and forty-three dollars ($743), which sum is received by the undersigned on deposit to stand in lieu of goods now on storage with the Jarvis Terminal Cold Storage Company, being balance of goods heretofore stored there by the firm of Gardemann & Jungelaus. It is claimed by the Erie Railroad Company that they have a lien upon said goods for freight charges, and this money is to be held by the receivers in lieu of the goods, to be subject to said lien, if any there be, and the deposit is made without prejudice to the rights of any of the parties in interest as to the question of freight lien or liability by Gardemann & Jungelaus or their assigns to pay the same, and the money is to be retained by the receivers until the direction of the court of chancery as to its disposition. If it is determined by the court of chancery that there is not any lien upon the goods for freight by the Erie Railroad Company, the money is to be returned to the depositors, the said Sanborn-Farrell Company.
    “It is further understood that this money is simply a deposit with the receivers, and is not to be considered in any way assets of the Jarvis Terminal Cold Storage Company in their hands.
    ■ “J. W. Hardenbeegh,
    “Palmer Campbell,

      “Receivers Jarvis Terminal Gold Storage Company.”
    The Sanborn-Farrell Company then filed a petition joining with themselves as petitioners the Western Cold Storage Company, which company claims to have advanced some $2,700 on the same goods, praying that the court should direct the receivers to return the $743 deposited under the stipulation to the Sanbom-Fafrell Company.
    To this petition the Erie Railroad Company filed an answer, and it is the issue raised by these pleadings, and the proofs which each side took to substantiate its allegations, that is here for determination.

      Mr. Frank F. Loughran for the petitioners.

      Messrs. Collins & Corbin, for the Erie Railroad Company.

      Messrs. McDermott & Fisk, for the receivers of the Jarvis Terminal Cold Storage Company.
   Garrison, V. C.

I ñnd that on January 7th, 1904, Gardemann & Jungelaus, wholesale dealers and shippers of poultry, shipped from Newhall, Iowa, to the Jarvis Terminal Cold Storage Company, two carloads of poultry and dairy products, and upon the 16th of January shipped one carload, and that these cars arrived at Jersey City, over the Erie railroad, on the 16th and 18th of January, 1904.

When the cars arrived they were delivered by the agents of the railroad company to> the consignee, the Jarvis Terminal Cold Storage Company, and in each instance after the delivery there was a request upon the part of the railroad to the Jarivs company to hold the goods until the freight charges should be paid, and a response by the superintendent of the Jarvis'company to the railroad company that he would do all in his power to see that the goods were held until the freight charges were paid, so long as he remained superintendent.

Subsequently freight bills were sent to the consignee by the railroad company.

In the early part of February, 1904, Gardemann & Jungelaus, who were the owners of the property consigned to the Jarvis ■ company, were desirous of borrowing $5,000 upon the credit of this property. By communications which passed between Gardemann & Jungelaus and the Jarvis company it was arranged that Gardemann & Jungelaus should make their promissory note to the Jarvis company for $5,743, which note was to be discounted by the Third National Bank of Jersey City, and that tire Jarvis company should honor a draft for $5,000 in favor of Gardemann* & Jungelaus, and should retain the $743, which is the amount of the freight charge, plus a small item of insurance.

Thereupon the proper papers to carry out this arrangement were executed, and the Jarvis company obtained the discount from the Third National Bank, pledging the property in its custody as collateral security, giving to the bank for this purpose a warehouse receipt in which was set forth the property pledged; which receipt contained no notice of any lien for freight.

In April of 1904 the Western Cold Storage Company advanced moneys to Gardemann & Jungelaus on the same property and received chattel mortgages thereon from Gardemann & Jungelaus, the amount of their advances being about $2,700.

Sanborn-Earrell Company are the eastern agents of the Western Cold Storage Company, and it was arranged that they should obtain an order from Gardemann & Jungelaus for the delivery to them of the goods, and should sell the same and pay oft the note of $5,743 made by Gardemann & Jungelaus to the Jarvis company and discounted by the' Third National Bank, and should pay back the advances made by the Western Cold Storage Company.

They began taking the goods out of the warehouse in installments, paying the value of the proportional part of the goods so taken to the bank, upon the note held by it.

It was at this juncture, and about the 30th of April,'1904, that the' Erie Eailroad Compaq, claiming that it had a lien upon the goods, notified the receivers not to permit the goods to be taken out, and that the stipulation heretofore quoted was made.

The sole question that is to be determined in this proceeding, as I view it, is whether the Erie Eailroad Company had a lien on the goods in question for the freight, which it might assert against the petitioners.

I am of opinion that the railroad company had lost its lien, and that as against the petitioners it cannot successfully assert that it has a lien.

A common carrier has a lien on goods carried by it and still in its possession for all charges that may be due to it for their transportation. 5 Am. & Eng. Encycl. L. (2d ed.) 399.

But its lien is a mere right to retain the goods until the payment of the charges due thereon, and its lien is lost by a delivery of them to the owner or consignee. 5 Am. & Eng. Encycl. L. (2d ed.) 411; Hartshorne ads. Johnson, 7 N. J. Law (2 Halst.) 108 (Supreme Court, 1823).

The contract of the carrier includes delivery, and the freight is not due until the delivery is made; therefore the delivery of the freight and the payment of the charges are concurrent acts. 5 Am. & Eng. Encycl. L. 405.

If the consignee refuses to accept the goods and pay the freight, the carrier has the right to store at the expense of the goods. 5 Am. & Eng. Encycl. L. 405.

I think that that which is termed “the carrier’s lien” is nothing more than the right to retain the goods until the charge for carriage is paid, and that there is in this respect an analogy between this so-called lien and the right which a seller has who sells goods for cash.

In each case there is a right to retain the goods until the price is paid, and delivery and payment are concurrent acts. In each case, if the receiver of the goods obtains possession bjr fraud, a right to pursue the goods remains. But if the goods are actually delivered without fraud, the right to pursue the goods is lost, and the obligation to pay must be enforced against the person liable. Bigelow v. Heaton, 6 Hill 43 (Supreme Court New York, 1843).

Whether the consignor or the consignee, or both, are liable to the carrier for the freight charges depends upon the respective contracts made by the parties or implied by law. Central Railroad of New Jersey v. McCartney, 68 N. J. Law (39 Vr.) 165 (Supreme Court, 1902).

Leaving aside the cases in which fraud enters, the real question in each case is whether there has been an actual delivery of the goods by the carrier to tire consignee.

In this connection it should be noted that cases cited from the admiralty courts should not be taken as controlling in jurisdictions where the lien is a strict common law lien.

In 'the admiralty courts a distinction is drawn between goods shipped on‘land and those shipped on water.

The reasons for this distinction are pointed out by Chief-Justice Taney in Sears v. Wills, 66 U. S. 108; 17 L. Ed. 38.

He says: “Courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with, them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo should pass into the hands of the consignee before he pays the freight.”

At common law there is no doubt that an unqualified delivery to the consignee extinguishes the lien. Bigelow v. Heaton, 4 Denio 496 Lane v. Old Colony Railroad Co., 14 Gray 143; Sears v. Wills, 4 Allen 212 Bowman v. Hilton, 11 Ohio 303; Wingard v. Banning, 39 Cal. 543; Sweet v. Pym, 1 East 4; Reineman v. C. C. & B. R. Co., 51 Iowa 338.

It is the contention of the railroad company that it did not unqualifiedly deliver the goods to the consignee, but it asserts that it delivered the same to the consignee subject to the lien of the railroad company for freight.

In the first place, I do not find, as a matter of fact, that the proofs sustain this contention. I find that the railroad company delivered the goods before making any arrangement with the consignee about payment of freight charges, and that the only arrangement made was with the superintendent of the Jarvis company, the consignee, and was to the effect that he would do all in his power while he remained superintendent of the company to see that the goods were not removed until the freight charges were paid. He ceased to be superintendent of the company on April 4th, 1904, when the company was placed in the hands of the receivers.

And, furthermore, it does not seem to me to be consistent with the origin and theory of this lien to maintain the right of delivery of possession by the carrier to the consignee, subject to the lien, in any case where the rights of innocent third parties intervene.

This lien is retained while possession by the carrier is retained, and ceases when the carrier ceases to have possession. (

To permit the carrier to give possession to the consignee and hold the property subject to the carrier’s right or lien, “would be recognizing a right to retain after the property had ceased to be retained.” McFarland v. Wheeler, 26 Wend. 467 (at p. 474) (Court of Errors of New York, 1841).

It is not necessary in this case to decide what the law is where a carrier and a consignee agree that property shall be delivered to the latter to be held until the charges are paid.

Assuming that such an agreement created a lien as between the parties, and that as between the parties it is enforceable, such lien would arise out of the convention of the parties and would not be the common law lien of the carrier, and would not follow the property into the hands of innocent third parties, or be effectual as against innocent third parties acquiring an interest in the property through or against the consignee.

There is such an inseparable connection between possession and the existence of the common law lien of the carrier that debate arose whether the lien was not lost in cases where the carrier deposited the goods in a warehouse of a third person; but the court held, and I think property, that the possession of such third person was the possession of the carrier, and hence the lien remained. Western Transportation Co. v. Barber, 56 N. Y. 544; 12 L. Ed. 165 (New York Court of Appeals, 1874).

The railroad company, in the case at bar, seeks to extend this doctrine, and contends that the consignee here was their agent to hold possession subject to the lien. This, I think, is an unwarrantable extension of the doctrine, where the rights of third parties intervene.

Where one of two parties must bear a loss, the law imposes it upon that one whose lack of care made possible the happening of the loss. Norfolk Southern Railroad Co. v. Barnes, 5 L. R. A. 611; 104 N. C. 25.

By delivery to the consignee the carrier makes it possible for the former to deal with the property as his own and as if entirety free from lien, and if the consignee does so and loss thereby ensues, it is surety right that such loss should fall upon the carrier, since he could, by retaining possession, have prevented the happening of the loss.

As against third parties (without notice), the lien of the carrier was lost by delivery of possession to the consignee, even if the latter agreed with the carrier to hold possession subject to the lien. McFarland v. Wheeler, supra.

This case is directly in point, and the well-reasoned and clearly expressed opinion of Senator Verplanck states the law as I conclude the law is.

But should my conclusions as to the law upon this point be erroneous, and it should be decided that the Jarvis company, the consignee, must be held to have been constituted the agent of the railroad company to hold possession for it, subject to the lien for freight, it would not, in my judgment, alter the result of the determination of this case. The utmost that the railroad company can legally claim to have established with respect to the relations between it and the Jarvis company is an agreement by the Jarvis company that “we will not let this property leave our possession until we receive the freight charges.”

The Jarvis company did receive the freight charges.

I think if it be held that the Jarvis company was constituted an agent of the railroad company at all, its agency was to hold until it collected. This is the reasonable construction of such a contract as the railroad company claims to have proven in this case, and the various experts called by the respective parties practically agree that such is the customary construction in similar circumstances which arise in dealings between ware-housemen and carriers.

I therefore conclude that in any view of the rights of the parties to this proceeding the Sanbom-Farrell Company is entitled to a return of the money deposited under the stipulation.

It is urged by counsel for the railroad company that if the court should find that it cannot assert its lien against the rights of the third parties, still the court should hold that the SanbomFarrell Companjr, having gotten possession of the goods, were bound to account to the railroad company and pay the freight charges out of any surplus realized by the sale of the goods over and above the amounts due the third parties.

In the first place, the contention between the parties arose out of the claim of the railroad company that it had a lien prior to the pledgee’s rights represented by the Sanborn-Farrell Company. I find it had not.

Secondly, there is no proof that there was any surplus arising from the sale of the goods, and, finally, I do not think that the issue sought to be raised by the contention is within the issues made by the pleadings and proofs, and I think that if the railroad company has any such right as it claims it must seek its enforcement in some direct proceeding, and I am inclined to think that the proper forum would be a court of law.


text:
    The Board of Chosen Freeholders of the County of Hudson and The Boulevard Commissioners of the County of Hudson v. Central Railroad Company of New Jersey et al.
    [Filed December 2d, 1904.]
    1. Jurisdiction of the subject-matter of a suit in equity cannot be conferred by consent.
    2. Though the physical construction of a grade crossing over a street cannot be enjoined as a nuisance, if it be authorized- by law, yet, if the railroad company exhibits an intention not to comply with the law with respect to safeguarding the same, municipal authorities are entitled to apply to a court of equity for relief touching the same.
    3. The Hudson county boulevard, constructed by boulevard commissioners-, is “a street in a city” within the terms of section 26 (P. L. 1903, p. -659), and hence a railroad is entitled to cross the same at grade on obtaining the consent of the city council, without the consent either of the boulevard commission or of the board of chosen freeholders.
    The bill in this case is filed by the board of chosen freeholders of the county of Hudson and by the boulevard commissioners of the county of Hudson against the Central Bailroad Company of New Jersey and the G-oubert Manufacturing Company. The city of Bayonne was subsequent^, by amendment to the bill, made a party defendant. » , •
    The object of the bill is to obtain an injunction against the Central Bailroad Company restraining it from entering upon the Hudson boulevard at a point where the same is intersected by West Second street, in the city of Bayonne, and tearing up the surface of the said boulevard and laying railroad tracks thereon.
    The bill charges that, under an act entitled “An act to authorize the board of chosen freeholders of any of the several counties of this state to lay out, open, construct, improve and maintain a public road therein,” approved April 7th, 1888, and its several supplements and amendments, the board of freeholders of Hudson county- laid out a public road in that county, beginning at the dividing line between the counties of Hudson and Bergen, and running in a general southerly direction through the county of Hudson, terminating at or near the shores of the Kill von Ivull in the city of Bayonne, and that the road has ever since been maintained for the purposes mentioned in the act, and is known as the “Hudson boulevard.”
    That said road, with its extensions as now constructed, is about twenty miles long, and throughout its length is generally one hundred feet wide. That its cost approximated $3,'000,000, and that it is substantially the only pleasure drivé in the county of Hudson.
    The bill further shows that after the passage of a supplement to the act first mentioned, which supplement was approved March 24th, 1898, a general election was 'held in the county of Hudson in November, 1898, at which boulevard commissioners were elected under said supplement, and that the complainants hold the said office of boulevard commissioners, and that since the election of boulevard commissioners the said Hudson boulevard has been continuously under the management and control of such commissioners.
    That the boulevard in the city of Bayonne is one hundred feet in width, and is graded, curbed, guttered and provided with sidewalks; and that the roadway between the curbs is paved with telford macadam pavement, which pavement extends continuously throughout the entire length of the said boulevard, across all of the intersecting streets, excepting where the tracks of certain street railway companies cross the boulevard.
    The bill further shows that no steam or dummy railroad at the present time crosses the said boulevard at grade, and that all steam railroad crossings are either above or beneath the grade of the said boulevard.
    It sets out that all of the expense of construction, maintenance and repair of said boulevard was and is paid by the county at large.
    The bill further sets out that on the 5th day of May, 1904, petitions were presented to the boulevard commissioners by J"ohn J. Kane and by Thomas Brady and others requesting permission to lay a railroad across the Hudson boulevard at West Second street, in the city of Bayonne, and that on the 11th of May, 1904, the boulevard commissioners unanimously refused said applications, and that no other applications were made to the complainants, and that no consent Iras been given by the complainants to the Central Bailroad Company of New Jersey, or to anyone else, to cross said boulevard at grade within the limits of the city of Bayonne.
    The bill further shows that on the oth of January, 1904, the Goubert Manufacturing Company petitioned the mayor and council of the city of Bayonne for consent to the construction of a branch railroad which, along the route indicated, would cross the Hudson boulevard at West Second street, in tire city of Bayonne ; and that the said mayor and council of the city of Bayonne granted the permission prayed for in the petition; and that the Central Bailroad Company filed its acceptance of the ordinance so granting said permission, and that it is the intention of the Central Bailroad Company to construct tracks at grade, under the provisions of said ordinance, upon which to operate a steam railroad across the Hudson boulevard at West Second street, in the city of Bayonne.
    It is alleged in the bill that the construction, operation and maintenance of a steam railroad crossing at grade at the point in question would work a permanent injury to the complainants; that it would be irreparable, and would constitute a permanent and continuing nuisance.
    As before stated, the bill prayed an injunction to restrain the construction of the said grade crossing.
    To this bill the Central Bailroad Company filed an answer setting up its incorporation under the laws of New Jersey; that it was operating a railroad, and that by virtue of the consent granted by the municipal authorities of Bayonne it claims to have full power and authority to build a branch line across the Hudson boulevard at grade at the point where the boulevard is intersected by West Second street, in the city of Bayonne, and that such branch line, when built, will become a part of the railway system of the said Central railroad, and will be used by it as a steam railroad.
    It denies that the complainants, or either of them, have any power or jurisdiction in the premises, and that any consent or permission is required by law from the complainants, or either of them, for the construction, operation and maintenance of a grade crossing by the railroad company at the point in question, and that it has the lawful right to construct such grade crossing by complying with the provisions of the ordinance of the city of Bayonne.
    The answer sets up the willingness of the railway company to submit itself to any reasonable regulations which may be lawfully imposed by the complainants, or either of them, concerning the character of the pavement to be laid between tire rails, and the manner of laying the same,, and the manner of laying the rails, and of restoring the surface of the boulevard; and further submits itself to the jurisdiction of this court to fix and determine the rights of the parties concerning the construction of the said railway across the boulevard at the point in question.
    It sets up that neither an overhead nor an undergrade crossing is feasible at the point in question for reasons set forth in the answer.
    It denies that the construction and operation of the railroad at grade at the point in question will be a permanent injury, or any injury, or that it will constitute a nuisance.
    The Goubert Manufacturing Company, and subsequently the city of Bayonne, also made answer to the said bill, but the allegations of these answers need not be rehearsed.
    An order to show cause was granted upon the filing of the bill and affidavits by the complainants, and upon the coming in of that order (the then defendants in the meantime having filed their answers) an order was made, which was consented to bjr each of the then parties to this cause. That order reads as follows:
    “The order to show cause, granted on the fifteenth day of July, nineteen hundred and four, in the above-entitled cause, why the defendants should not be enjoined pursuant to the prayer of the bill, now coming on to be heard in the presence of John Griffin, of counsel for the complainants, and George Holmes, of counsel for the defendant Central Railroad Company of New Jersey, and James Benny, of counsel for the defendant Goubert Manufacturing Company; and the defendants having by their answer requested this court to retain jurisdiction over this cause, and define the mode and manner of crossing the Hudson boulevard by the proposed branch line of the defendant Central Railroad Company of New Jersey, mentioned in the bill of complaint herein, and the complainants assenting that this court retain jurisdiction of this cause for all purposes,
    “It is, on this second day of August, nineteen hundred and four, ordered that it be and hereby is referred to Frank P. McDermott, Esq., one of the special masters of this court, to take the evidence of the respective parties respecting the mode and manner in which this court should define the crossing of the said Hudson boulevard by the said branch line of railroad of said defendant Central Railroad Company of New Jersey, including the questions as to whether said crossing shall be at, over or under grade, and in any case what regulations and restrictions and conditions should be made by this court in the construction, maintenance and use of the aforesaid crossing, and return same to this court.
    “And it is further ordered that all equities be reserved until the coming in of said master’s report.
    “And it is further ordered that, until the further order of this court, the said defendants, their officers, servants, agents and employes, do absolutely desist and refrain from, entering into and upon and breaking or tearing up the surface of the Hudson boulevard and laying tracks thereon at a point where West Second street, in the city of Bayonne, intersects the same, or at any other on said boulevard.
    “Respectfully advised.
    “Bindley M. Garrison,

      “V. C.

    “The above order is herebj' assented to.
    “John Griffin, “Sol’r for Complainants. “Geo. I-Iolmes,

      “Solicitor and of Counsel for Deft. Central Railroad Company of N. J.

    “James Benny, “Solicitor of Deft. The Goubert Manufacturing Co.

    “August 2d, 1904.”
    Subsequently the city of Bayonne filed its answer and consented to the making of the order .of August 2d, 1904.
    An order of reference having been made, the case came on for hearing upon the bill and answers, the order of August 2d, above recited, and the testimony taken by the parties under the last-mentioned order.

      Mr. John Griffin, for the complainants.

      Mr. George Holmes, for the defendant the Central Railroad Company of New Jersey.

      Mr. James Benny, for the defendants the Goubert Manufacturing Company and the city of Bayonne.
   Garrison, V. C.

The first question for determination is whether this court has any jurisdiction in this suit.

The consent of all the parties to the making of the order of August 2d, 1904, by the terms of which it is provided that this court shall retain jurisdiction of this cause, will, of course, not be effectual if the court is without jurisdiction of the subject-matter.

It is too well settled to require citation that jurisdiction over the subject-matter of a litigation cannot be created or conferred by consent, and that unless the court has jurisdiction of the subject-matter it may not be permitted to exercise the same, even though all the parties consent that it do so.

The bill was filed upon the theory that the construction of the railroad across the boulevard at grade would constitute a nuisance. There is a further insistment made that before the railroad company is authorized to cross the boulevard at grade it must first obtain the consent of the boulevard commissioners, or of the board of chosen freeholders, to such crossing.

It may be remarked, in passing, that the joining of the two 'municipal bodies as complainants was evidently a precaution taken by counsel so as to avoid any question of lack of power in either acting separately, and since no objection was raised by the defendants to such joinder of complainants, there is no reason why the rights of the parties should not be determined without necessarily defining whether the right obtains to the freeholders or to the boulevard commission. In stating my conclusions, whenever I refer to the complainants, I shall mean whichever body is vested with the powers or rights or limitations with respect to the boulevard.

The Hudson county boulevard is a road built under the provisions of an act of the legislature, the date and title of which have been heretofore given (3 Gen. Stat. p. 2882), under the terms of which the complainants have the exclusive control of the road and may regulate the use thereof throughout its entire length.

They have the power to establish the width of the carriageways and sidewalks; they may build sewers, culverts and receiving basins, and have power to improve and repair the road and light the same, and, under certain subsequent amendments and supplements, have what may be construed to be a joint easement with the municipalities through which the road runs in the matter of sewer, water and gas pipes running through or under the boulevard.

The entire expense of construction, maintenance and repair is borne by the county treasury.

Section 12 of the act provides “That, except to cross such road, no horse, dummy or other railroad shall be allowed on such road or any part thereof.”

The act under which the road was constructed has been stated by the supreme court to be sui generis. Curley v. Freeholders of Hudson, 66 N. J. Law (37 Vr.) 401 (Supreme Court, 1901).

And that court has also determined that under the act “the board has exclusive control of such road.” Hudson v. Bayonne, 54 N. J. Law (25 Vr.) 293 (Supreme Court, 1892).

By the ninth section of the revision of the Railroad law (P. L. 1903 p. 650), a railroad may construct a branch line of a certain character by following the provisions of that act, provided it shall obtain the consent of the municipal authorities thereto.

It is admitted by the bill that the consent of the municipal authorities of Bayonne has been obtained to the construction of the branch line by the Central Railroad Company in this suit, in laying which the crossing of the boulevard at West Second street would ensue.

There can be no doubt that tire complainants, as the trustees of the public easement of passage over the boulevard, are proper parties to' file a bill to preserve and protect the road in their control from unlawful interference. Freeholders of Monmouth v. Red Bank and, Holmdel Turnpike Co., 18 N. J. Eq. (3 C. E. Gr.) 91 (Chancellor Zabriskie, 1866); Township of Greenwich v. Easton and Amboy Railroad Co., 24 N. J. Eq. (9 C. E. Gr.) 217 (Chancellor Runyon, 1873); Jersey City v. Central Railroad Co. of New Jersey, 40 N. J. Eq. (13 Stew.) 417 (Vice-Chancellor Van Fleet, 1885); Newark v. Delaware, Lackawanna and Western Railroad Co., 42 N. J. Eq. (15 Stew.) 196 (Vice-Chancellor Van Fleet, 1886); Township of Hamilton v. Wainwright, 52 N. J. Eq. (7 Dick.) 419 (Vice-Chancellor Bird, 1894) Township of Franklin v. Nutley Water Co., 58 N. J. Eq. (8 Dick.) 601 (Vice-Chancellor Emery, 1895); Burlington v. Pennsylvania Railroad Co., 50 N. J. Eq. (11 Dick.) 259 (Vice-Chancellor Reed); Coast Company v. Spring Lake, 56 N. J. Eq. (11 Dick.) 615 (Vice-Chancellor Reed, 1898); Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 616 (Vice-Chancellor Grey).

Their contention in their bill is that the construction as contemplated under the ordinance of Bayonne, providing as it does for a different character of pavement, and not providing for any derailing switches, gates or other safeguards, would constitute a nuisance, and that they have the right to apply to the court of chancery to restrain the defendants from constructing their railroad in such a way as to constitute a nuisance.

It is settled that whatever is done under the authority of law is not a nuisance.

Chancellor Green, in Hinchman v. Paterson Horse Railroad Co., 17 N. J. Eq. (2 C. E. Gr.) 75 (1864) (at p. 77), said:

“A public nuisance must be occasioned by acts done in violation of law. A work which is authorized by law cannot be a nuisance.”

And the supreme court, in the case of Montgomery v. Trenton, 36 N. J. Law (7 Vr.) 79 (1872) (at p. 81), says:

“The prosecutors claim that the railway, if constructed, will be a nuisance. But no structure which has the sanction of lawful authority can be a nuisance. That result could flow only from doing an act unauthorized and illegal.”

So that it is settled that if the railroad company was authorized by law to cross the boulevard at grade, the construction of its railroad at that point could not be enjoined as a public nuisance.

The twenty-sixth section of the revised Railroad law (P. L. 1903, p. 659) prescribes the duty of railroad companies with respect to highways crossed by such companies.

Similar provisions will be found in the charters of almost all, if not all, of the railroads chartered by special'act. Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 601 (Vice-Chancellor Grey, 1901).

And there seems to be no doubt that the legislature has the power to provide, as enacted in this section, in the public interest, and the railroads previously chartered would be subject to such provisions. Palmyra v. Pennsylvania Railroad Co., supra; Montclair v. New York and Greenwood Lake Railway Co., 45 N. J. Eq. (18 Stew.) 436 (Chancellor McGill, 1889).

Since the answer of the railroad company expresses its willingness to abide by any reasonable rules and regulations with respect to the placing of the rails on the surface of the boulevard and the paving between the rails, and with respect to restoring the surface of the road, no injunction, under the circumstances, should issue upon the theory that any nuisance will be committed by the method or manner of laying the rails or interfering with the present surface of the road.

Whether the court of chancery would take jurisdiction of a bill to restrain a railroad from crossing a highway because of an allegation that it was not about to perform the duty enjoined upon it by the twenty-sixth section of the revised Railroad law, or of some similar provision contained in its charter (if it were not subject to the cited section of the’Railroad law), is left to be settled under the contention of the complainants now being dealt with.

The ¡Dhysical construction of the. road in the street, being authorized by law, is not a nuisance; but if the railroad company exhibits an intention to construct a grade crossing and not to comply with the provisions of the law with respect to safeguarding the same, it would seem that the municipal authorities in whom were vested the custody of the public easement would have the right to apply to the court of chancery to restrain such construction. As was said by Vice-Chancellor Grey, in the case of Palmyra v. Pennsylvania Railroad Co., supra, (at p. 617) : “Municipal authorities, being charged with tire duty of keeping highways fit for safe and convenient passage, this court has always maintained their right to its aid to restrain wrongful acts by railroad companies at crossings. Cily of Newark v. Delaware, Lackawanna and' Western Railroad Co., 42 N. J. Eq. (15 Stew.) 196. * * * The same principle was unanimously declared by the court of errors and appeals in Township of Greenwich v. Easton and Amboy Railroad Co., 25 N. J. Eq. (10 C. E. Gr.) 565.”

Although there are no distinct charges in the bill setting forth the particulars of the manner of crossing contemplated by the railroad company, it is set forth that the railroad company claims the right to cross if it complies with the terms of the ordinance of the city of Bayonne, which is referred to in the bill and attached as an exhibit to it.

From an inspection of that ordinance it will appear that the only provision concerning the matter of safeguarding the crossing is contained in subdivision C of section 2, which reads as follows: '

“This consent is granted upon the further condition that said Central Railroad Company of New Jersey * * * shall construct and maintain,, at the several points where the said branch line intersects (the streets), first-class standard railroad crossings which will enable teams and pedestrians to cross said branch line at the said intersecting streets with the same facility and freedom from inconvenience as is afforded where public highways now cross said Avenue A branch line.”

There is nothing before the court from which it can be learned what the conditions are where “the public highways now cross said Avenue A branch line.”

It might be, therefore, that the complainants failed to include such charges in their bill as would make out a case calling for the intervention of this court, or that the defendants, by their answer, showed a sot of facts in which the intervention of this court would have been improper; but it is not necessary in this case to decide that question, because, both by the answer of the railroad company and by its stipulation, -it consents that this court shall retain jurisdiction for the purpose of defining the mode and manner of crossing the Hudson boulevard by the proposed line of railway, and this is sufficiently broad to cause the court to retain jurisdiction, permitting the parties complainant to amend their bill in such respects as may be necessary to raise the issues which are actually tried and determined herein.

I am of opinion, therefore, that for the reasons just suggested, and upon the ground stated, this court has jurisdiction, unless the state of the law is such that the consent of the complainants is a prerequisite to the right of the railroad company to cross the boulevard at grade.

If such consent is necessary, then this court has no jurisdiction to define the manner of crossing, since it cannot substitute its consent for the consent which the legislature required to be obtained from the complainants; and no stipulation• or agreement by the complainants to shift or delegate the right to grant this consent from its own discretion to the discretion of the court could be effectual to accomplish such a purpose.

Whether the consent of the complainants is required by the railroad company to cross the boulevard at grade depends upon the construction to be placed upon the twenty-seventh section of the revised Railroad law. P. L. 1903 p. 659. That section reads as follows:

“Where any railroad shall cross any street or highway in any city, it shall be either above or below the grade thereof, at such distance as shall not interfere with the free and uninterrupted use of such street or highway, unless the common council or other governing body of the city in charge of streets shall grant permission to the railroad company to cross such street or highway at grade.”

I am of opinion that the boulevard must be held to be a street in a city, within, the meaning of this act. It is certainly within the corporate limits of the city, and the word “in,” as defined in 16 Ami. & Eng. Encycl. L. (2d ed.) 123, is “in” means “inside of;” “within the bounds or limits of, as fin the house, in the citjq in the county.’ ” And in the case of Pancoast v. Troth, 34 N. J. Lato (5 Vr.) 377 (Supreme Court, 1871), construing language referring to roads “in the township,” the court held that a road was in the township of Bor den-town, notwithstanding that it was wholly within the city of Bordentown, there being in that case a curious duality of township and city government.

If this be the correct construction of the language of this act, then such street in the city may be crossed at grade if permission is obtained from “the common council or other governing body of the city in charge of streets.”

That permission has been obtained in this suit.

It is argued on behalf of the complainants that since the. law vests in them the exclusive control of the boulevard, it should not be held to be the intention of the legislature to permit the boulevard to be crossed at grade upon a consent obtained from the authorities of the city.

There is no provision in the Boulevard act, or in any other act which has been called to my attention, which vests in the complainants any power or authority to grant consents to railroad crossings, and it is well settled that unless the legislature has vested such authority in the municipal body having charge of the street it has not such power. Domestic Telephone Co. v. Newark, 49 N. J. Law (20 Vr.) 344 (Supreme Court, 1887); Benton v. Elizabeth, 61 N. J. Law (32 Vr.) 415, 417 (Supreme Court, 1898). So that if it be held that the consent of the city authorities is not effectual to empower the railroad to cross the boulevard at grade in the city, then that road may not be crossed at grade in the -city, because there is not any provision vesting-authority to permit such crossing lodged in the complainants.

The law is perfectly settled in this state that a railroad chartered to construct a line between ascertained termini may, by implication, cross at grade all streets and highways lying between such 'termini.

The twenty-seventh section of the General Railroad act is, in my opinion, declaratory of a legislative purpose to safeguard the public in cities by providing for other than grade crossings except in such cases as shall seem to the city authorities as safe cases in which to permit grade crossings.

It would, in my view, be perfectly lawful for the legislature to p>rovide that there should be no grade crossings in cities excepting in such cases as should be permitted by the police commission or any other municipal authority designated as the body from whom consent should be obtained, and I think that the language used in the section under consideration is indicative of a purpose to vest in the body named the right to grant the consent, because that body, presumabty, would have knowledge of the conditions of travel and of safety or danger with respect to travel in its municipality.

The same rules of construction which require us to hold that the boulevard is a street or highway in a city, within the meaning of the first part of the section, in question, logically lead us to hold that the latter part of the section vests the power to grant permission to cross such street in the body named.

The fact that the complainants have been invested by the legislature with certain rights, duties and powers with respect to the boulevard, does not, in my judgment, detract from the exercise hy the city of Bayonne of other rights and duties and powers with respect to the said road, the power to do which has been vested in the city by the legislature.

The highways of the state are under the control of the legislature, and it may act in respect thereto through legislative agents created by it and vested by it with certain powers. New Jersey Railroad and Transportation Co. v. Suydam, 17 N. J. Law (2 Harr.) 53 (Supreme Court, 1839).

The legislature undoubtedly has the right to prescribe how much and what power each and any municipal subdivision created by it shall enjoy, and this rests solely in legislative discretion. Johnson v. Asbury Park, 58 N. J. Law (29 Vr.) 604 (at p. 608) (Supreme Court, 1896); Pancoast v. Troth, 34 N. J. Law (5 Vr.) 377 (at p. 386) (Supreme Court, 1871); McNeal Pipe and Foundry Co. v. Lippincott, 57 N. J. Law (28 Vr.) 540 (at p. 542) (Supreme Court, 1895).

It is my judgment that the legislature placed in the complainants power to control the road in the particulars mentioned in the law authorizing the road and in subsequent amendments and supplements, and placed in the common council or other governing body of the city in charge of streets the power to permit any street in the city, no matter under whose control the said street might be, to' be crossed by a railroad at grade.

A construction which should hold that the boulevard was not a “street in a city” would leave it to be treated as other streets or roads not in cities are treated under the law, and it is admitted that such streets and roads may be crossed at grade without obtaining any consent to such crossing. Such a construction is not, I conclude, admissible, because it would be made in tire face of the undoubted physical fact that the street is in the city.

The only other construction is that it is a street in a city, but is not within, the section of the act under consideration (i. e., the twenty-seventh section of the General Railroad act). P. L. 1903 p. 659.

I do not adopt this construction because, first, it is a street in a city, and hence clearly within the words of the section; next, because the legislature has adopted a general policy with respect to all streets in cities, as evidenced by the section, and has not excluded, either in that act or in the Boulevard act, any such streets; and lastly, because if the permission which the legislature by the section in question empowers the city authorities to give is not effectual with respect to this particular street in a city, then the legislature must be held to have omitted a case in this respect, since it is not anywhere provided that any other body may grant the permission.

I think it clearly appears that the legislature intended to provide for all cases with respect to all streets in any city, and authorized the city authorities to grant the permission with respect thereto when, in their discretion, it was safe and proper to do so.

My conclusion, therefore, is that the ordinance enacted by the city council of the city of Bayonne is effectual in law to empower the Central Railroad of New Jersey to cross the Hudson boulevard at grade at West Second street, in the city of Bayonne.

If my conclusions are sound, it results in finding the existence of three easements at the point of crossing: There is the easement enjoyed by the complainants as the custodians of the Hudson county boulevard; the easement of the city of Bayonne with respect to West Second street at its intersection with the boulevard, and the easement of the Central Railroad of New Jersey along West Second street and across the boulevard at the locus in quo.

Since it is evident that the parties hereto have not agreed as to the method in which the respective easements shall be enjoyed in respect to each other, it is within the power of the court of chancery to regulate the same.

“The regulation of conflicting easements is exclusively” a chancery power (concurring opinion in Anthony v. West Jersey Railroad Co., 57 N. J. Eq. (12 Dick.) 618 (Court of Errors and Appeals, 1898), and in a case in this court, in which all of the previous cases are noticed and commented upon, it is held by Vice-Chancellor Grey that the'jurisdiction of this court, under circumstances similar to those existing in this case, is beyond challenge. West Jersey and Seashore Railroad Co. v. Atlantic City and Suburban Traction Co., 65 N. J. Eq. (20 Dick.) 613 (1904).

The court will therefore retain jurisdiction of this case and will make a decree defining the mode and manner of crossing.

The proofs show that all of that part of the cit3r of Ba3ronne which lies along the Kill von Kull is extremely valuable' for manufacturing purposes, and has hot now any value for any other purpose.

First street lies nearest the water, and is shown to be in a very dilapidated condition, and has at certain places been vacated, and is, throughout its length at the point in question, scarcely fit for use.

Second street, the next street to First street, and the one through which the city has granted permission for the railroad to run, is not paved, and is destined to be the site of large manufactories extending down to the Kill.

The boulevard is only paved down to First street, and in view of the obvious future of the land between First and Second streets along the boulevard, it is clear that this is what might be termed “a dead end.”

It appears from'the proofs that the city of Bayonne is making every effort to increase its ratables and population by attracting to the sites along the Kill large manufactories, and is offering to such railroad and other facilities necessary to their successful operation.

It seems proper to say, in passing, that the facts developed in this case constitute a striking illustration of the wisdom of the legislature in permitting the authorities of the city to judge of the advisability of grade crossings, since it appears herein that the wealth and population of the city will be augmented-by making it possible for manufactories to be erected and operated at this point in the city, and the general public will be little incommoded and not 'at all placed in jeopardy by permitting the crossings at the point in question.

The water levels are such that an undergrade crossing of any of the streets is impracticable, and the testimony of all of the witnesses demonstrates that an overhead crossing would destroy the lands for the only purpose for which they are useful, viz., for manufacturing purposes.

An overhead crossing would block Second street entirely, so that it could not be used for teams, and would malm it impossible to connect the railway with the manufacturing plants in such a way as to serve the purpose for which the railway is to be laid.

Under all the circumstances and facts, I find that the only practicable crossing is a grade crossing, and that such a crossing should be made in accordance with the most improved methods and safeguarded by the best means.

Upon my announcing to counsel for the respective parties that I had reached the conclusions just stated, there was submitted to me a form of final decree (satisfactory as to form to each of the counsel herein) providing for a grade crossing, and specifying the kind of rails, of pavement, of construction, and providing for signals, safety gates, derailing switches and the like.

I will advise a decree as herein stated.