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    Samuel H. Grey, attorney-general, ex rel. Morris & Cummings Dredging Company, informant and Morris & Cummings Dredging Company v. The Greenville and Hudson Railway Company.
    [Filed April 17th, 1900.]
    1. Under Chancery rule 213, providing that a motion to strike out the information and bill shall have the effect of a demurrer, a motion to dismiss an information and bill in chancery for'an injunction should not be reserved for future determination on final hearing, but should be determined as to all questions of law on the admitted facts, and questions as to jurisdiction of the chancery court, and of want of equity, before a preliminary injunction is granted.
    2. Where a dredging company was relator in an information by the attorney-general to enjoin the building of a railroad in a manner'contrary to law, across a street giving access to relator’s.land, the fact that a bill on behalf of the dredging company, filed with the information, and seeking the same relief, was dismissed for want of equity, because of its failure to show a special injury, did not have the effect of dismissing the information, and the information may be retained.
    3. Section 11 of the General Railroad law, as amended March 10th, 1891 (P. L. of 1891 p. 129; Gen. Stat. p. 2660 ¶ 8$), providing that railroad companies may, before or after the completion of the main line, construct “branches within the limits of any county through which said road may pass,” does not restrict a railroad company owning a railroad, the termini of which are within a county and no part of which lies outside the county, from building a branch line.

      4. Section 11 of the General Railroad law, as amended March 10th, 1891 (P. L. of 1891 p. 129; Gen. Stat. p. 2660 ¶ 83), authorizes railroad companies to build such branch lines as they may deem necessary within the limits of any county through which their roads may pass, and P. L. of 1893 p. 176 ch. 90 authorizes railroad companies to build branch lines from their main lines to mills, factories or clay-beds, “provided that no railroad corporation shall construct any branch lines within the limits of any city or town of this state until it shall first obtain the consent of the municipal authorities of such city or town thereto.” — Held, that the proviso contained in the act of 1893 applies only to branch lines to mills, factories and clay-beds, and not to branch lines constructed under the act of 1891; and where a railroad company desired to build a branch line under the later act, the consent of a city within the limits of which it commenced was not a prerequisite.
    5. The road complained of and proposed to be constructed by defendant as a “branchToad,” under section 11 of the General Railroad law, as amended March 10th, 1891 (P. L. of 1891 p. 129; Gen. Stat. p. 2660 ¶ 83), held, on the facts now presented, not to be a branch road, and a preliminary injunction will issue against it on the information of the attorney-general.
    6. Where a railroad company is about to construct a branch line without authority of law, and in excess of its statutory powers, it will be enjoined in a chancery court, on the information of the attorney-general, though no injury to the public occasioned thereby is shown.
    On application for preliminary injunction and motion to strike out supplemental information and bill. Heard on information and bill and affidavits, answer and affidavits, supplemental information and bill and affidavits and answering affidavit.
    The defendant is a railroad company organized in 1895, under the General Railroad laws. Its railroad is located entirely within the limits of the city of Jersey City, in the county of Hudson, is two and sixty-two hundredths miles long, and the beginning and ending points are both points in the railroad of the Lehigh Valley Terminal Company! The route as located runs in a general northerly direction near the shore of New York bay and crosses a public street called Chapel avenue, in the southerly part of Jersey Cify, which runs east and west and terminates on the tide-waters of New York bay. The Morris & Cummings Dredging Company is the owner of the shore and lands under water at the end of the avenue, under deeds and riparian grants, and Chapel avenue is the only means of access to its valuable tract of land containing about fourteen and one-half acres’ shore front, and two hundred acres under riparian rights. Complainant has expended considerable sums in improving its lands (in addition to rentals paid the state, amounting to $80,000), but the filling in of the lands has not been completed, and the tract at present is actually occupied only by a few boat-houses, a stable and a single dwelling rented to tenants. The attorney-general, on the relation of the dredging company, filed an information. against the railroad company (with which was joined a bill by the dredging company), charging that the railroad company was proceeding to construct its road across Chapel avenue on a location about two hundred and twenty-five feet west of its located route, and also that it intended on this location to cross Chapel avenue, at grade, without having first obtained the consent of Jersey City, as required by the fourteenth section of the General Railroad law, as amended March 17th, 1891. P. L. of 1891 p. 169 ; Gen. Stat.p. 8661 ¶ 84- The dredging company, as complainant, also alleged irreparable injury to their interests, if the road was crossed at grade, and the information and complaint prayed injunctions against the construction of the defendant’s railroad across Chapel avenue, at grade, at any point outside of the located right of way, and against crossing the avenue, at grade, without the eon-, sent of the city. The special prayer for injunction in the original information and bill did not include a prayer to enjoin generally the construction of the railroad across the avenue outside of the located route, but only to enjoin the grade crossing outside of the route. Defendant’s answer admitted its intention to construct a railroad across the avenue at the point in question, but denied that the crossing was to be at grade, and, by the affidavits filed before the answer, disclosed a plan for crossing under grade. The application for a preliminary injunction in the terms of the bill, which extended only to the crossing at the grade, was denied, the answer and affidavits denying the intention to cross at grade. Defendant’s answer further disclosed that it intended to construct a railroad across the avenue as part of the route of a branch railroad called branch No. 1, located by it under the authority of the General Railroad laws, after the filing of the information. The route and survey of the branch No. 1 is annexed to the answer, and shows that the branch begins at station 65 + 80 of the filed center line of the route of the Greenville and Hudson Railway Company, and running for a distance of one and twenty-six hundredths miles, all within the limits of Jersey City, terminates at the beginning point of the located route of the main line of the Greenville and Hudson railroad. The length of this main line from the beginning point to its station 65 + 80, as appears by the copy of the located route annexed to the original information, is about six thousand five hundred and eighty feet or one and one-quarter miles. Defendant’s answer also shows that it is the owner of the lands north and south of Chapel avenue between the crossing of its main line and its branch No. 1, but the answer does not expressly claim any ownership in fee of the lands included within the street lines.
    The answer of defendant also shows that its said land north of the avenue now contains more than twenty yard-tracks intended for a railroad yard, and that the tracks intended to be constructed across the avenue, under its located branch No. 1, are with the view of running its cars under the avenue, and making use of the land south of the avenue for yard room, and also for connecting with other railroad tracks lying to the south and used in the same general business, the defendant’s railroad forming together with several other corporations a part of the Lehigh Valley system, formed for the purpose of receiving and sending to tide-water the traffic of this road. The order denying the preliminary injunction gave leave to amend the information and bill, and under this order a supplemental information and bill is filed, charging, first, that the location of defendant’s branch No. 1, throughout its length, is practically parallel with that of its main line as located and about two hundred and twenty-five feet west thereof, and that this location of a so-called branch line is not in fact the location of a branch line, but is a re-location of its main line, which has not yet been fully constructed, and, as such re-location, is without authority of law; second, that the company has no authority, under the General Railroad law, to locate any branch lines whatever; and third, that if it has any authority to locate and construct branch lines, the branch line being entirely within the limits of Jersey City, cannot, under the law of 1893, be constructed without the consent of the municipal authorities, which has not been obtained. The supplemental information also charges that in the construction of its undergrade crossing under the avenue, the company proposes to excavate the highway, which is fifty feet wide, and, after constructing its road, to carry the highway over it by a bridge only twenty-five feet in width, thus narrowing the highway to one-half of it's width. Such method of construction is declared to be illegal and an irreparable injury to complainant. Decree is asked declaring that the construction of the road outside of the main line is illegal; that the construction of the road proposed, as a so-called branch line, is illegal; that the construction of the branch without consent of Jersey City, is illegal; and that defendant is without power or authority to interfere with the surface soil of the avenue by substituting a bridge and lessening the width of the avenue. An injunction is prayed restraining the construction of the branch No. 1 as located, and from narrowing the passageway of the avenue. On this supplemental information and affidavits, and on the original information and affidavits and answer, application is now made for a preliminary injunction. The defendant at the same time moves to strike out and dismiss the supplemental bill, on the ground that the dredging company has shown no such special interest or injury as entitles it to maintain a bill, its injury, if there be •any, being sustained in common with the public. A motion is also made to strike out and dismiss the supplemental information and bill, as to the attorney-general and the dredging company and as to each of them, on the ground of misjoinder, and for want of equity in the bill, because no facts are stated showing any illegality or irregularity in the location of the branch line, or to show the necessity of the consent of Jersey City, to its location or construction, and for want of parties, the mayor and aldermen of Jersey City. The application for injunction and the motion to strike out are heard together.

      Mr. Bindley M. Garrison, for the attorney-general and complainant.

      Mr. Charles L. Corbin, for the defendant.
   Emery, V. C.

This hearing together of the motion to dismiss and the application for preliminary injunction is according to the usual practice where a demurrer or plea is interposed. 2 Dan. Ch. Pr. *596. And the motion to strike out the information and bill, which has, under rule 213, the effect of a demurrer, must be first determined. A case on demurrer must be heard and fully determined as to all questions of law involved on the admitted facts, and these questions cannot be reserved for future determination on final hearing, as is sometimes done where important questions of law are raised on an application for preliminary injunction and want of equity in the bill is urged as an objection to such injunction. In view of this bearing of a decision upon demurrer, parties will sometimes, in a proper case, be put to a formal demurrer instead of a motion to dismiss, but in the present case it is not necessary, as the legal questions are fully raised by the motion and have been fully argued with a view to immediate decision, and I will therefore dispose of the legal questions arising on the motion.

As to the motion to dismiss the bill because the dredging company have not shown such special legal interest or injury as entitles them to file a bill, I think the motion must be granted on the authority of the decision of the court of errors and appeals in H. B. Anthony Shoe Co. v. West Jersey Railroad Co., 12 Dick. Ch. Rep. 607, 618 (1898). In that case the defendant, a railroad company, had constructed an additional track in a public highway on which complainant’s property abutted, and the injury which complainant alleged was special in the sense that this obstruction to the highway specially interfered with the prosecution of its business, but the complainant did not own the fee of the highway, and it was therefore held that the legal right on which its alleged special injury was based was only the common right of the public to use the highway, and the injury to complainant, although greater in degree, was in character the same as that of the entire public. There was, therefore, no special legal right or injury on which complainant’s claim to equitable relief could be based, and the bill was dismissed. Mr. Justice Garrison, who dissents on one of the questions of equitable jurisdiction involved in the case, agrees with the majority of the court and with the court below in holding that no private right was involved and that the complainant’s bill should be dismissed because it could not assert the public right.

The dredging company here shows no special legal right to the fee of' the street at the place of crossing, and no injury different in character from the general injury to the public, and, therefore, while it may be relator to an information by the attorney-general, it cannot have a decree in its private right on the bill, and the supplemental bill must be dismissed. But the dismissal of a bill filed in connection with an information does not carry the information with it, and the attorney-general, if the information shows a right to relief, may have a decree. 1 Dan. Ch. Pr. (6th ed.) *11, citing, inter al., Attorney-General v. East India Co., 11 Sim. 385, 388; Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. 172, 179 (1874); Attorney-General v. Vivian, 1 Russ. 226. These are all cases where the complainants were, as here, not only complainants but relators in the information, and the misjoinder of a private bill with an information was not considered as affecting the attorney-general’s right to a decree on information filed in the public interest. As relators, the dredging company are not required to have any special interest. 1 Dan. Ch. Dr. (6th ed.) *13. The substantial questions raised on the application for injunction on the information and the motion to dismiss, are (1) whether the construction of a branch road by defendant company across the avenue is beyond its power under the railroad laws; (2) whether if it has such power the previous consent of the municipality is necessary to the construction; (3) whether the road proposed to be constructed is in fact a branch road within the meaning of the railroad laws; (4) whether, if all these questions be decided in defendant’s favor, it should not still be enjoined from narrowing the highway in the construction of its branch road across it. Two other questions may be noticed, which relate rather to the jurisdiction of this court or to its exercise on preliminary injunction: It is suggested in the brief of defendant’s counsel, but not argued, that the restraint of the illegal exercise of the powers of a public company, even on final hearing, is not clearly a subject of equitable jurisdiction, and, therefore, should not be exercised by preliminary injunction. But, as above stated, the case being heard as on demurrer, must be considered as now on final hearing, for the purpose of deciding all legal questions involved on the admitted facts. And this question as to the jurisdiction in equity to restrain the excess of corporate powers, on the application of the attorney-general, where the excess tends to public injury, is settled by the decision in Stockton v. Central Railroad Co., 5 Dick. Ch. Rep. 52, 78. There is- no reason, therefore, for withholding decision upon the question of defendant’s powers to construct a branch road across the avenue until final hearing, on the supposition that jurisdiction to pass upon this question will then be declined. And inasmuch as the facts upon which this right to construct a branch at all across the avenue are undisputed, and only points of law are involved, which have been fully argued by counsel on both sides, as applicable both to the motion to dismiss the information and to the right to injunction, there is no sufficient reason for withholding the decision of these questions until a second argument on final hearing, and the question of the right to construct the branch should be disposed of on this motion, both in the interest of the public and of the company. The authority of defendant company to construct a branch line rests upon the eleventh section of the General Railroad law, as amended March 10th, 1891 (P. L. of 1891; Gen. Stat. p. 2660 83), which provides that

“ it shall be lawful for every corporation formed under the act * * * to construct, maintain and operate a railroad with a single or double track, with such side tracks, turnouts, offices and depots as they may deem necessary between the points named in the ai-ticles of association, commencing at or within and extending to or into any town; city, or village named as the place of the termini of such road, and from time to time, either before or after the completion of the main line, construct, maintain and operate branches within the limits of any county through which said road may pass.”

The attorney^general claims that the language of this section as to the construction of branches clearly confines the construction of branches to those companies which pass through a county, and that the words “passing through a countyj” as here used, means passing from one line or boundary of the county to another of its boundaries. As this portion of section 11 has been, from the time of the first enactment of the General Railroad law, in 1873, the only grant of express authority to construct either main lines or branch roads, and the grants for both purposes are expressly connected in this section, the construction which has been adopted as to the location and extent of the main lines which are authorized to be constructed must be considered as possibly affecting the construction which must be put upon the location and extent of the branch lines which are authorized. Soon after the passage of the General Railroad law the question was raised whether this section authorized the construction of any railroad the termini of whose main lines were both within the same town or city, and in Long Branch Commissioners v. Railroad Co., 2 Stew. Eq. 566 (1878), it was held by Vice-Chancellor Van Fleet that such road was authorized, and this decision was approved in National Docks, &c., Co. v. Central Railroad Co., 5 Stew. Eq. 755, 766 (Court of Errors and Appeals, 1880). This decision has been since acted on in many instances in the location of railroads entirely within the limits of a city or county and is unquestionable. It is next to be noticed that, so far as relates to the power of any road which can construct a main line, to construct branches also, the act does not, by express words, disclose any intention to withhold from any road authorized to construct a main line the authority also to construct branches. The power to construct branches is introduced in the section as a general power given to every corporation under the act, and the limitation of this power to railroads which do not have a route extending entirely between different boundaries of the county arises, if it exists at all, from an implied restriction. This implied restriction which is claimed, results from the subsequent description in the section of the character or location of the branches authorized, in which subsequent description of the location of the branch road reference is made, as part thereof, to the extent or character of the location of the original road. As so described, the branches authorized are only branches within the limits of the county through which the said road may pass,” and the attorney-general claims that this expression has two clear results in reference to the construction of branch roads — first, to confine the branch itself within the limits of the county in which it starts from the main line, and second, to limit the power to construct branches to roads which pass through counties from one boundary to another. I cannot yield my assent to the second claim, and I think that in the absence of any direct express provision or necessary implication limiting.the class of roads which is to have the power to construct, branch roads, the general words of the section authorizing the construction of main lines, should extend also to the construction of branches, and should not be so limited as to deprive any company, which has the authority to construct a main line, of the right to construct branches. There is, in my judgment, no necessary implication in this case which requires that the words county through which the said road may pass,” which are used primarily to describe and limit the extent of the branch, should, with reference to the main line, be construed as necessarily meaning that the main line should “ pass through ” the county, in the sense of going from one boundary to another. The words pass through,” as here used in reference to the main line, may be considered as used in the sense in which an arrow is said to “ pass through ” the air, the notion of motion or location in a body or space being referred to. Passage through ” a county at the point of departure of the branch road from the main line was, as it seems to me, the object of the reference to the main line, and the fixing of the terminus a quo and the terminus ad quem of the main line, which could construct branches, by a reference to its “ passing through ” a county was not intended. With respect to the classes of railroads to be built under the General Railroad law, it has been declared that the construction of the act should be liberal. National Docks Railway Co. v. Central Railroad Co., 5 Stew. Eq. 755, 766 (Court of Errors and Appeals, 1880). And the same construction should be adopted in reference to the general grant of the powers of the act to all classes of corporations organized under it, and none should be excluded from the exercise of a general power, unless excluded expressly or by an implication so neces- . sary as to leave no doubt of the intention to exclude.

I conclude, therefore, that the defendant company has the right to construct a branch road under this section, from its main line, which lies entirely within a county, and does not pass through it from one boundary to another.

The second question is whether the consent of the municipal authority of Jersey City is nec.essary to the construction of a branch road, under the act of March 10th, 1893 (P. L. of 1893 p. 175 ch. 90), entitled “An act concerning railroad corporations.” Such consent has not been obtained, and if it is made necessary by statute it is admitted that the information must be sustained, and a preliminary injunction must be issued to enforce it, under the authority of Franklin Township v. Nutley Water Co., 8 Dick. Ch. Rep. 601; Stockton, Attorney-General, v. Atlantic Highlands Railroad Co., 8 Dick. Ch. Rep. 418; Grey, Attorney-General, v. New York and Philadelphia Traction Co., 11 Dick. Ch. Rep. 463. The question as to the necessity of municipal consent now arising under the act may be briefly stated without reciting the act in full. The title of the act is genera], being “An act concerning railroad corporations,” and, in the first section, it confers upon all railroad corporations power to construct branch lines from their main lines, and also from existing or future branches thereof, to any mill, factory or manufacturing establishment or clay-bed, and for this purpose again invests the corporation with its original power to take and acquire lands. Three provisos then follow in the same section of this grant of power to build branch lines, viz.,

“provided, however, that no such branch line shall be more than two miles in length; and provided further, that the corporation ‘ which shall hereafter construct any branch line or lines in pursuance of the power and authority hereby conferred' shall file a route with the secretary of state and make a deposit with the state treasurer; and provided further, that no railroad corporation shall construct any branch lines within the limits of any city or town of this state, until it shall first obtain the consent of the municipal authorities of such city or town thereto.”

The first and second provisos clearly and expressly apply only to the branches to clay-beds, &c., authorized by the act, but the third proviso is general in its reference to branches, and it is insisted by the attorney-general that the words of this proviso being general and not limited to the branches to clay-beds, &c., apply to any branch line thereafter constructed whether under the power to construct branch lines given by the General Railroad law, or the special branches to clay-beds authorized by the act of 1893. It is pointed out, and with force, that the title of the act is general; that instances of general legislation by provisos are not unusual, and that they have been sustained as such legislation in important instances.

Upon the other hand, it is contended by defendant’s counsel that the recognized general rule in reference to the construction of such provisos is that they are to be taken as qualifying or limiting only the general powers conferred by the act in which they occur, and not as limiting grants of powers arising under other legislation. And numerous cases illustrative of this general doctrine are cited. It is admitted on both sides that the ultimate object to be reached by any principle or rule to be applied, is the-ascertainment of the intention of the legislature in enacting the words of the statute in question, and that all rules and illustrations of construction are useful solely for this purpose of ascertaining the legislative intent as expressed by the statute. The considerations which constrain me to hold that the general words used in the third proviso of this section must be construed as applying only to the branches authorized by the act are two.

First. Their general application to all branches of railroads thereafter constructed would limit a general power to construct branches, which had been in existence from the passage of the General Railroad law, and make the power to build a branch, line to any city or tpwn of the state thereafter dependent on the consent of the.municipality. This would be opposed to the general policy of the railroad laws, which leaves the general power of construction of main lines and branches free and untrammeled except by the conditions fixed by general laws enacted by the legislature in the general interest. If the general power of building branch roads given by the original Eailroad law is thus limited in respect to branches constructed after the act of 1893, it will obviously affect or control, in the interest of then existing roads or their branches, the construction of competitive branches of other roads to towns or cities, and to this extent defeat the policy of the original act. To confer upon the municipal authorities of any city or town a practical veto upon the power given to a railroad company to construct a branch to and within its limits, under the General Eailroad law, would be such a departure from the scope and policy of the General Eailroad law, and such a legislation in favor of special interests, that legislation claimed to have this effect should not be subject to any other reasonable interpretation. I am unwilling to infer the intention to confer much power from the mere use in a proviso of general language, which, if construed according to general rules of construction, admittedly proper for that purpose, can fairly and reasonably be limited to a special power conferred by the act itself, viz., to build branches to clay-beds, &e.

Second. In view of the obvious effect of giving to the proviso in question the effect claimed, the adoption of this construction must be imperative. This proviso, as will be noticed, is the third proviso of the section, and follows two previous provisos, the first of which, introduced by the words “ provided, however,” expressly applies only to the branches built under the act, and cannot apply to branches built under the existing general law. The second proviso, “and provided further,” is not an independent proviso, which may reach to branches not included within the scope of the first proviso, but is strictly a further or additional proviso to the first, and like the first, reaches only to the branches built under the act. It is an additional or further limitation on these alone. The third proviso follows in the words, “ and provided further,” and the continued use of the word “ further ” describes the scope and character of this proviso, as also intended to be an additional proviso applicable to the branches included in the two previous provisos, and not as a new or independent proviso, intended to reach branches which were not included at all within the previous proviso.

For these reasons, therefore, I conclude that the consent of the municipal authorities to the construction of the branch road was not necessary under the act of 1893.

The third question submitted is whether the road proposed to be constructed across Chapel avenue is in fact a branch road within the meaning of the act. Taking the undisputed facts in relation to this proposed “ branch road,” as disclosed by the answer to the original bill and the affidavits to the supplemental bill, my present view is that this road cannot properly be called a branch road. The usual and ordinary meaning of a “ branch road,” as applied to railroads, denotes, as was said by Mr. Justice Dixon, in Akers v. United New Jersey Railroad Co., 14 Vr. 110, 112 (Supreme Court, 1881), a road connected, indeed, with the main line, but not a mere incident of it, or constructed simply to facilitate the business of the chief railway, but designed to have a business of its own for the transportation of persons and property to and from places not reached by the principal route. While these expressions were not intended and should not be applied as giving a fixed meaning to the word “ branches,” and while the circumstances of each case must ultimately control the application of the statute, yet the main principles of distinction which usually occur as between main lines and branches are stated with authority. These principles were applied in a case where the question was whether tracks leading to freight houses were branch roads within the power of the road to build. The road now proposed to be built begins and ends on the main line, and, so far as yet appears, reaches no other points or places for railroad service than those on the main line as located. The branch is practically parallel with the main line throughout its whole length, and distant only about two hundred and twenty-five feet therefrom. The intervening space, so far as now appears, is occupied by terminal yards connected with the main line or with the system of which it forms part, and the “branch” is constructed for the purpose of facilitating the use of these terminal yards. This proposed line of tracks across the avenue is to be constructed, as the answer says,

“ with a view to run its oars under the avenue on the said branch and make use of its railroad yard south of the avenue for yard room, and also connect with other railroad tracks lying to the south and used in the same general business.”

This business is further described in the answer as the receiving and handling the traffic sent to tide-water over the Lehigh Valley system. The main line of the defendant’s road is not yet completed, and on the facts as now disclosed in relation to the character and connection of the main line and the proposed branch, the construction of this “ branch ” is substantially the crossing of the avenue by the terminal yard — tracks connected with the main line as located. If these tracks are bona fide “ branches” of the main line, it is difficult to see why the entire system of terminal tracks cannot be extended across the public highway as branches.” If, on the other hand, this branch ” is really intended to be used for the main route, then it must be so constructed under the special laws relating to re-location or straightening routes, and not as a branch.

I conclude, therefore, that the facts disclosed by the answer to the original bill and by the affidavits do not disclose authority in the defendant to interfere with the public highway under claim of right to construct this railroad as a branch ” road, and that such interference with the highway is in excess of the power of the company.

The affidavits in this case, while they show that the road, if constructed across the avenue, as proposed, will interfere to some extent with' public travel, do not show such a probable interference with the present ordinary course of public travel as to create a serious public nuisance merely by interference with travel. Two important questions therefore remain to be considered — first, whether the attorney-general has the right to restrain the construction of the road without evidence of serious actual public injury, and second, whether a preliminary injunction should go. As to the first question, the cases relating to the right of the attorney-general to intervene in the public interest, which are numerous, show that the distinction is between cases in which a public nuisance, by reason of interference with ordinary public travel, is the sole basis of complaint, and cases where the real injury on which the attorney-general’s information is based is an illegal act on the part of a public company in excess of its powers, through which illegal act the public generally is affected.

In cases of the first class, based on nuisance to travel or passage, it is settled that the attorney-general, in order to obtain the aid of a court of equity, must show a serious public injury, which cannot be remedied in the ordinary tribunals. Raritan Township v. Port Reading Railroad, Co., 4. Dick. Ch. Rep. 11, and cases cited at p. 18.

In cases of the latter class, excess of public powers affecting the public rights, the rule is settled by many authorities that the attorney-general is justified in interfering without evidence of actual injury to the public. In Attorney-General v. Shrewsbury Bridge Co., 21 Ch. Div. 752 (Mr. Justice Fry), all the previous English cases are examined and this rule declared to be settled. And this case also shows that as to the nature of the public iuterest to be protected, the interference with the public highways or the navigable waters of the state, by a public company in excess of its powers, is a sufficient public interest. This seems to me to be the true rule upon the question now involved. The protection of the state' and the public rights against the illegal excess of powers is peculiarly under the charge of the attorney-general, and where this excess affects public rights in highways or navigable waters, the remedy of the state to control the excessive use of a power conferred for public use, should not be confined to the uncertain and incomplete remedies by indictment or action after the injury has been completed. For the complete relief and protection to which the attorney-general, as representing the public rights in highways, is entitled, restraint against the excessive use of power is necessary. The uncertainty of protecting the public rights in highways by indictments against nuisances was one reason for the establishment of the doctrine that these public rights should also be protected by ejectment and by injunction, pursued by the municipal bodies vested with control of the highways. In Hoboken Land and Improvement Co. v. Hoboken, 7 Vr. 540 (Court of Errors and Appeals, 1873), Mr. Justice Depue says, upon this point of protection of the public rights in highways by ejectment, in favor of municipal authorities: To deny this form of relief and remit the public to a remedy by indictment for nuisances, would result in subjecting public rights in property to the varying moods of grand juries.” In courts of equity, the right of the attorney-general to interfere, on behalf of the general public, for the protection of the public highways in a proper case never seems to have been questioned, and bills by municipal authorities for such protection are maintained on the ground that for this purpose they have a special interest or right different from that of the public at large, who can be represented only by the attorney-general. Easton and Amboy Railroad Co. v. Greenwich Township, 10 C. E. Gr. 565, 567 (Court of Errors and Appeals, 1874). In view, therefore, of the clear tendency of the courts to increase rather than diminish the remedies necessary for the complete protection of the public interest in highways, it results a fortiori that no restriction or abatement should be made in the rights of the attorney-general to apply to a court of equity to protect the public highways from an unauthorized invasion by an excessive use of statutory public powers.

As to the issuance of a preliminary injunction, such injunction is usually necessary in order to afford the complete relief to which the public are entitled if in fact the interference with the highway is illegal, and preliminary injunctions seem to have been granted and approved in cases of this character where the right to ultimate equitable relief is clear upon the admitted facts. Easton and Amboy Railroad Co. v. Greenwich Township, supra. In cases involving the protection of private rights and municipal rights against excessive use of power by public compañíes, a preliminary injunction is always granted, where necessary for the complete protection to which they are entitled on undisputed facts. Township of Franklin v. Nutley Water Co., 8 Dick. Ch. Rep. 601, and cases cited at p. 606. The public rights now asserted against the same kind of injury are entitled to the same protection, and the information does not come within the rule equally well established and enforced, w'here the rights to be protected and the injury complained of involve private property or rights only, that irreparable injury must be shown, in order to award a preliminary injunction.

In the case in hand timely notice has been given of the intention of the attorney-general to question the right of defendant to construct a railroad across the highway at the point in question, under any of the powers so far conferred upon the defendant, and there are no special circumstances in the case which entitle the defendant to proceed with the construction pending suit, subject to the liability to remove the obstruction upon decree at final hearing. In the absence of an answer to the supplemental information, and so' long as the defendant’s authority to construct a road across the highway depends solely upon the facts now disclosed, and admitted for the purpose of this argument and motion, the construction must be enjoined.

I will advise a decree dismissing the supplemental bill, denying the motion to dismiss the supplemental information, and directing a preliminary injunction until answer and further order. If defendant desires to appeal and files notice of appeal without delay, the informant will, as a condition of preliminary injunction, give the consents necessary to put the cause on the list for hearing at the June Term of the court of errors and appeals.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Frederick F. Guild, receiver, v. Michael Meyer et al.
    [Filed April 19th, 1900.]
    1. It is provided by statute that any judge of the court' out of which an execution issues may order discovery before himself or a designated supreme court commissioner, .and when taken by a commissioner the examination shall be certified by the judge making the order, who may appoint a receiver, subject to the orders of said court. — Held, that where one judge ordered discovery and another appointed a receiver, such appointment was invalid since the same judge must do both.
    2. The validity of an order appointing a receiver in supplementary proceedings may be attacked in a proceeding by such receiver to perfect title to the judgment debtor’s choses in action.
    3. Where the validity of the appointment of a receiver in supplementary proceedings was attacked in a suit by him to perfect title to the debtor’s choses in action, and subsequently the receiver was re-appointed properly, such reappointment could not be set up by a supplementary bill, since the receiver’s right to sue was fixed at the time of filing the original bill.
    On bill, &c.-

      Mr. Robert H. Me Garter, for the complainant.

      Mr. Samuel Kalisoh, for the defendant Metzger.
   Emery, V. C.

This is a bill by a receiver appointed under supplementary proceedings against the judgment debtor Meyer, and at the hearing a preliminary objection was made that the complainant had no title to the choses in action of the judgment debtor, for the reason that his appointment as receiver was void. The objection raised is that the order for discovery was made -by Judge Child, as judge of the Essex circuit court, on petition made or addressed to him as such judge, and that after the examination of the debtor and witnesses under the order before a supreme court commissioner, the order appointing complainant receiver was made by Mr. Justice Depue as associate justice of the supreme court, holding the Essex circuit court, the order reciting that the evidence had been certified to him. The statute (Gen. Stat. p. 1413 § 41) provides

“that it shall be lawful for any judge of the court out of which execution issues to make the order for discovery before such judge or a supreme court commissioner, to be designated in the said order,”

and (Gen. Stat. p. 1419 § 16) that when taken by a commissioner the examination “ shall be certified to the judge making the order,” and after considering the evidence, &c., “ it shall be lawful for the said judge to make order appointing receiver,” &c. The receiver after appointment is, by this section, “ subject to the authority and orders of the said court from time to time,” and is to report to the court.

The explicit language of these sections and the language of the other sections, distinguishing between the judge and the court of which he is a member, as well as the whole scope of the acts, forbids the construction that the words “judge” and “court” are interchangeable, and it must be held that under the terms of the act only the judge who made the order for discovery has the power.to consider the evidence and appoint a receiver. The question raised is whether the validity of the order of appointing can be collaterally attacked. The case of Westfall v. Dunning, 21 Vr. 459 (Supreme Court, 1888), in my judgment, settles this question in the affirmative. In that case, an order for the appearance of the debtor was disobeyed, and, on motion for attachment, the supreme court went behind the order, examined the original petition and held this defective because of an insufficient affidavit to the petition. The judge, in dealing with the procedure, was held (Chief-Justice Beasley, atp. 461) to be exercising “ a special statutory power, and the proceeding was of a summary character, and therefore, by force of a rule that has long been established in this state, his cognizance over the subject must appear on the face of the papers. The foundation of his jurisdiction i's the petition of the creditor duly verified, and in this instance there was no such petition, all authority in the premises was wanting.”

The general object of the statute is the transfer by law of the choses in action of the judgment debtor to satisfy his debts, and the method of legal transfer adopted is an order of appointment by a judge designated for that purpose. The order is to be made as the result of a judicial decision upon evidence given upon examination of the debtor and others, and the order for discovery is the process by which the evidence is secured on which is based the order for a receiver, which, by the statute,effects the legal transfer. This being a legal and involuntary transfer of the debtor’s property by an order in special proceedings, it can only be effected against an adverse claimant of the property by the officer specially designated to make the order of appointment — i. e., the judge who made the order for discovery and before whom all proceedings up to the order of appointment are to betaken. The jurisdiction exercised by the judge under the original application, while special and statutory, is nevertheless purely judicial, and no doubt the debtor may, by his conduct in the judicial proceedings, waive objections to the regularity of the proceedings under the order for discovery, so that the final order for appointment by the judge and the transfer of title will not be affected by these irregularities. But, as against an adverse claimant, such waiver or conduct of the debtor cannot cure the infirmity of an appointment, or effect a transfer by law of the debtor’s property, where the order of the appointment relied on as effecting the transfer by law is made by a judge, who, quoad hoc, has not been invested with the statutory authority to effect the transfer. Viburt v. Frost, 3 Abb. Pr. 119, 120; S. C. (cited as Hobart v. Frost), 5 Duer 672, a decision under a similar statute, which is strongly relied on by the complainant’s counsel as sustaining the appointment, extends only to an irregularity in the taking of the examination which was held to be waived by the debtor’s voluntary appearance for examination. In the opinion of Mr. Justice Depue, in Adler v. Turnbull & Company, 28 Vr. 62 (Supreme Court, 1894), a suggestion is made by the learned justice (at p. 66) that where a question of irregularity in the proceedings arises in a suit by a receiver to recover property, there is great force in the contention that the imperfection is a mere irregularity, available only to the defendant in the proceedings on certiorari. The defect alleged in the case was the failure of the evidence to disclose property for which a receiver could be appointed. This question involved a judicial decision as to the effect of evidence, and the decision was regularly reviewable only by certiorari in direct proceedings under the act (§ 29 p. 1420), and the right to review this decision by the supreme court on collateral proceedings, was expressly based on the special statute giving them jurisdiction on attachment for contempt to review the entire proceedings both on the law and facts, and give judgment on the whole case.

I conclude that the order of appointment made by Mr. Justice Depue was void, and as against an adverse claimant did not have the effect of vesting a statutory title to the judgment debtor’s choses in action or property in the complainant, and that a person so claiming title adversely to the debtor and not a party to the proceedings, is entitled to insist upon this invalidity in a suit against him by the receiver based on a title derived solely from the order.

The defect in the order of appointment was not disclosed until near the close of the hearing, and complainant, after the disclosure, applied to the judge who made the order for discovery, who thereupon made an order dated May 24th, 1898, duly appointing complainant receiver. This order, under the statute, vests in complainant title to the choses in action or property in question, relating back to the time of the issue of the execution, and complainant, under leave, applied at the argument for leave to file a supplemental bill setting up title under this order. The case appeared to me, at the hearing of the application, to be one where such leave should be granted in order that the case might be disposed of on the merits, and the cases then referred to in opposition did not seem to decide adversely. I find, however, upon further examination, that the general rule is that if the complainant has no title or right to relief at the time of filing the bill, a good title to relief subsequently acquired cannot be set up by way of supplement to the original bill. 2 Dan. Ch. Pr. (6th Am. ed.) *1516, and note citing, inter al., Attorney-General v. Corporation of Avon, 3 De G. J. & S. (68 Eng. Ch.) 637 (1863). Lord-Justice Turner says (atp. 650): “I take it to be a well-settled rule of the court that where there has been no title to sue at the time of the filing of an original bill or information, a decree cannot be founded upon a right of suit subsequently acquired and brought forward by a supplemental bill,” and also (Ibid.), “ the principle would seem to be this, that there must be a right of suit when a suit is commenced and a supplemental bill is not the commencement but the continuance of the suit.” See, also, cases cited in note 1, 68 Eng. Ch., supra.

The sole title of complainant, in exclusion of any other person, to the judgment debtor’s choses in action arose and was vested by the order of May 24th, 1898, subsequent to the commencement of the suit, and no decree in his favor based on this title can be rendered on a bill filed before he had any title. His remedy must be by the filing of an original bill.

The application to file supplemental bill must therefore be. denied and the original bill must be dismissed. The dismissal will be without costs. Defendants, by demurring to the bill for failure to disclose the petition and order of discovery, which were the foundation of complainant’s title, might have raised the question at an early stage of the cause, and before the expense of a hearing was incurred.


text:
    Stirling Silk Manufacturing Company v. Sterling Silk Company et al.
    [Filed May 2d, 1900.]
    1. The marking or weaving of the complainant’s name on the selvedge or margin of silk manufactured by it is nothing more than a method of marking the manufacturer’s name on his goods, and cannot be protected as a patented process or trade-mark, though complainant first introduced the method in this ■ country.
    2. Where complainant advertised that its method of marking its name on the selvedge of silk was patented, and no patent-right existed, such action was ground for refusing complainant a preliminary injunction against one alleged to be infringing complainant’s name and method of use, where it did not appear that the necessity for such interference was absolutely imperative.
    3. Practice as to preliminary injunctions in trade-mark cases discussed.
    On application for preliminary injunction. Heard on bill and affidavits, and answer and affidavits.

      Mr. Joseph JD. Bedle and Mr. J. Flavel McGee, for the complainant.

      Mr. Eugene Stevenson, for the defendants.
   Emery, V. C.

This is an application for a preliminary injunction against the use of complainant’s name and trade-mark. Without prejudging in any way the decision which should be made at final hearing, on the complainant’s rights, as set up in the bill, and on the argument, it is proper and necessary in applications for preliminary injunctions in these cases to consider to some extent the status of the complainant’s claim, on the disputed questions of law and fact which are raised on the pleadings and affidavits, for the reason that in trade-mark and similar cases, clearness or doubt as to complainant’s title is one of the elements which specially affects the right to a preliminary injunction.

After considering and weighing, as fully as I had opportunity, the very full and thorough arguments and briefs of counsel, my present view as to the situation of complainant’s claim is this:

First. That the claim set up in its bill, of an exclusive right, as against the defendants and all others, to a label or distinguishing mark,’consisting of the weaving of a name upon the selvedge or margin of “Black Taffeta” or other silks,'is not well founded. This, as it now strikes me, is nothing more than a method of marking complainant’s name on its goods, and as such method it cannot be protected, either as a patented process or as a trade-mark. This method of marking his own name upon every yard or smaller parcel of the goods is open to every manufacturer or dealer in the goods for a similar purpose. It is exceedingly useful and valuable for the purpose of enabling the manufacturer or dealer in silks to appeal directly to the purchaser of every yard of his goods, and establishing with purchasers a reputation for his goods that will increase the sale. To give complainant the exclusive benefit of this method under cover of the right to a trade-mark (which has no limited existence) would, as it now seems to me, create a privilege or monopoly in trade of an entirely new character, and the claim that it first introduced the method in this country does not give complainant any monopoly or exclusive right to its use. No case has been cited to support any such claim, and no preliminary injunction could go on the basis of this claim.

Second. I think the corporate name of the defendant, “ The Sterling Silk Company,” is so similar to that of the complainant, “The Stirling Silk Manufacturing Company,” that with purchasers at retail-of the goods there is danger of confusing complainant’s goods with defendants’. Such purchasers are the persons principally to be considered in reference to the trade in these selvedge-marked goods, rather than the jobbers or persons in the trade, for, as above stated, this method of marking on the selvedge the name of the maker or dealer and his guarantee is adopted for its effect in increasing the sales to the ultimate purchasers by a direct and permanent appeal to them. With reference to ordinary purchasers at retail, the distinctions drawn by counsel between the names are, as it now strikes me, too slight to be considered substantial. The two names, “ Sterling ” and “Stirling,” are not only eadem sonantia, but the difference in mere spelling is one of such a character that ordinary purchasers would not be likely to recollect from one day of purchase to another, whether the name of the manufacturer was spelled with an “e” or an “i,” and on seeing the name spelled with a different letter from the one expected, would be likely to consider themselves mistaken as to the spelling, if the matter was at all called to mind. I doubt whether either counsel in this case, or the court, independent of the special reasons for recollecting the distinction set out in the answer, would themselves carry-in mind for any length of time the distinction between “ Sterling” and “Stirling” as the names of the respective parties in the cause.

The difference occurring in defendants’ name by the omission of the word “manufacturing” might perhaps tend to distinguish, except for the fact that both companies are silk manufacturing companies, and nothing but manufacturing companies. The addition, therefore, has no effect by way of describing the character of business, and for the purpose of distinguishing the parties to either dealers or purchasers at retail, the addition is ineffectual. So far as relates to the question of the infringement and use of name therefor, my present view is that the complainant has at least a prima facie ease for relief. Up to the present time, or rather up to the time when the question in relation to the name appears to have been first raised by this method of bringing the name directly to the attention of the customers, and so long as the dealings of the parties in their goods were altogether or mainly with respect to the trade dealers, the similarity of names seems to have been of little practical inconvenience. This seems to have been due mainly.to the method adopted by the defendants. of advertising and carrying on the business with the trade by using the names “Valentine & Bentley ” in connection, more or less prominent, with the name “ Sterling Silk Company ” on its advertisements, signs, &e. But with the defendant company’s adoption of the method of increasing its retail sales by weaving its name and guarantee on the goods, this distinctive feature of the use of the names of Valentine & Bentley has been discontinued, and it has been discontinued just when, under the special circumstances, the need for distinction was most urgent, if defendants really desire to continue the distinction. My present view, therefore, is that under these circumstances, admitted by the answer and affidavits, as to the pains defendants have for years taken, and apparently with success, to distinguish the companies and their products, the complainant has the right, even after the lapse of several years, to call in question the propriety of the use of the similar name, now that it is used in a manner calculated to mislead the ordinary purchaser, aud used under a claim of right.

As to the differences in the manner of marking the names on the selvedge, the difference in spacing and the greater number of words to the yard, and the áddition of the word “wear” to “ guaranteed ” — these, as it now strikes me, are matters of detail which might possibly distinguish them to a dealer in the trade, but would not be fixed in the attention of the purchaser, to whom the ideas in mind would be the ideas manifestly intended to be conveyed by both parties of a guaranteed silk taffeta, manufactured by the “Sterling,” or “Stirling,” Silk Company.- I consider, therefore, that the complainant, so far as its rights depend on the use of the name, has established a prima facie case for protection against the use of the name in the manner complained of, aud the question is, is it entitled to injunction pending the final hearing? Interlocutory injunctions in trade-mark cases which seek to restrain, pending hearing, the carrying on of business to a certain extent or in a certain way, against defendants’ bona fide claim of the right so to carry it on, involve not only the question of the protection of a probable right but also other considerations, which are specially applicable in these cases. One is promptness of application for the preliminary injunction, and in view of its interference with trade the rule against delays is specially strict. 26 Am. & Eng. Encycl. L. 504. and cases cited. In this case complainant introduced its method into the market in January, 1899. In June, 1899, as the bill states, defendants commenced the infringement .of the method and name. In October, 1899, complainant, as appears by the affidavit of Phillips, advertised that it was the original maker and owned the patent-right to mark “ guaranteed” on the selvedge of silks. On February 13th, 1900, it procured evidence by affidavit of a purchaser of the defendants’ use of the name in the manner complained of. The bill was filed March 27th, 1900. This delay from either June or October, 1899, is fatal to a preliminary injunction unless (1) the nature of the infringement of the name is such that the complainant’s rights pending hearing cannot be otherwise protected, $nd unless (2) the balance of inconvenience resulting from restraining defendants pending trial if defendants are ultimately successful, is so much less than that of now refusing to restrain defendants pending trial if complainant is successful, that the objection of delay is overcome. This principle of balancing the inconvenience to the parties in granting preliminary injunction is recognized as specially applicable in infringement cases. Read v. Richardson, 45 L. T. (N. S.) 54, cited in 26 Am. & Eng. Encycl. L. 501; Kerr Inj. *26, *27. In the present case the application of this rule favors defendants. The practice of marking is not likely to be a temporary method or fashion, but, in the language of one of the witnesses, “it has come to stay,” as a most useful method of directly influencing purchases from reliable and honest manufacturers and dealers in silk. The goods are staple goods, and there is no necessity, therefore, of immediate protection of the trade of a passing season or fashion. Defendants cannot, as I now view their rights, be restrained from weaving the names of others on their silks, but only from the use of their own name as heretofore used, and this constitutes only one-sixth of their entire manufacture of the goods. Defendants appear to be entirely responsible and able to respond to a decree for an accounting for profits on the sale pending suit, of goods unlawfully marked, if complainant be held entitled to a decree.

The only serious question as to damage pending hearing, in my mind, arises from the fact that the defendants’ goods are alleged to be of a cheaper and inferior grade, and the sale pending suit may, therefore, as- is claimed, injure complainant’s reputation for silks. But defendants’ affidavits on this point, while they do not deny that their silk is cheaper and lighter, show that the quality is good and the wear guaranteed. The main difference, if this' be true, is in the weight and price of the respective silks, and as it is probable that all silk manufacturers put on the market silks which differ in price because of the weight, I do not think that this difference requires protection by injunction pending suit. An accounting for profits, which may Have been made pending the action, if complainant eventually secures it, would probably fully indemnify complainant for any possible losses by reason of the sale of a different weight of silk, if the quality is good, as I must, on defendants’ affidavits, take it to be. But in order that complainant’s right on the account for profits pending suit may not be prejudiced by the withholding of the injunction, the defendants, as a condition of such withholding, must stipulate to keep an account pending suit of the goods manufactured and sold with its name stamped. This is a common condition in these cases. Kerr Inj. *27. Another reason not pressed by counsel weighs with me against granting a preliminary injunction in this case, and should be called to counsel’s attention now. Complainant, in October, 1899, advertised that its method of marking on the selvedge of silks was patented, and that its right to so mark was exclusive, and not only a legal but a moral right. It does not appear that the advertisement or claim has been withdrawn. No such patent-right existed, nor, if my views above expressed be correct, can any patented-right exist, and the representation that the marking of guaranteed was patented, was therefore false. It was moreover a falsehood publicly made by advertisements for the apparent purpose of influencing dealers who were adopting the method of having their names woven on the goods by manufacturers, to deal with complainant only, under penalty of infringement of patent, and it may possibly have had this effect. If this false statement that the mark “ guaranteed” was patented had appeared in connection with the trade-mark or name -itself on the goods, there could be no question, I think, that the complainant could have had no relief, even on final hearing, for the protection by injunction is not given in favor of falsehood. Kerr Inj. *412 and cases cited. The serious question is whether a false statement that the mark was “ patented ” made, not in the trade-mark itself, but by way of collateral misrepresentation, as by advertisements, &c., is a bar to relief. Upon this point judges differ. The leading case is Ford v. Foster, L. R. 7 Ch. App. Cas. 611. In this case Vice-Chancellor Bacon held that the representation in invoices and advertisements that a shirt called Ford’s Eureka Shirt ” was patented, when it was not, deprived complainant of right to relief on final hearing. He says (at p. 619) that he is not disposed to fritter away the wholesome doctrine of the court, that if a man invokes its aid for the protection of a legal right, he is bound to show that he dealt' honestly with that right, and that there was no honesty in complainant’s holding himself out as being patentee when he had no such right. On appeal, all of the justices admitted the correctness of the principle of the effect of misrepresentation in the trade-mark itself, but held that collateral misrepresentations that the article was patented were not fatal to protection on final hearing, if the misrepresentations would not have been a defence to an action at law for violating the trade-mark, or sufficient basis for enjoining a suit at law. These rules were made the test of whether a court of equity was bound to aid by injunction in the protection of the legal rights. (Lord-Justice Mellish, at pp. 632, 633.) This case was cited in a late case in the house of lords (Cochrane v. MacNish, 1896, App. Cas. 225, 226), and the question started but it was not directly passed on. My present view is that there is much to be said in favor of the rule as stated by Vice-Chancellor Bacon, especially in view of the fact that in many cases our courts of equity have adopted a rule in relation to the protection of legal rights, different from that laid down by the justices on appeal in Ford v. Foster. Our courts hold in many cases that complainant must come into a court of equity with a cause essentially equitable. Minzesheimer v. Doolittle, 45 Atl. Rep. 611, and cases cited at p. 612 (Errors and Appeals, March, 1900). This rule, if applicable to the present case, and in the absence of a satisfactory explanation of the representation or of its continuance, might prevent complainant obtaining a final decree. The doubt or question as to the legal effect of the misrepresentation upon the right to a decree at final hearing is therefore an additional ground for refusing to interfere by preliminary injunction, where the necessity-for such interference is not absolutely imperative, in order to protect complainant, if ultimately successful.

The preliminary injunction is therefore denied. Costs on the application will be costs in the cause.


author: Stevens, V. C.

text:
    Virginia Cary Smith Hall v. Thomas H. Hall.
    [Filed February 23d, 1900.]
    1. That a husband is overbearing and unkind does not constitute such cruelty as to be of itself a cause of divorce or to convert the wife’s leaving him into desertion by him.
    2. A husband whose overbearing and unkind treatment has caused his wife to desert him is not entitled to divorce on the ground of desertion where he has not made advances and concessions at a time and in a manner suitable to obtaining her return.
    On petition and cross-petition.

      Mr. Alexander C. Young, for the petitioner.

      Mr. George G. Tennant, for the defendant.
   Stevens, V. C.

The petitioner and defendant were married on June 29th, 1894. Mrs. Hall was then about twenty-four years old and the defendant was, I suppose, about the same age. They lived together in Jersey City until February 13th, 1896, when the wife left her husband’s home. There is a petition and cross-petition. The wife says the defendant constructively deserted her because his extreme cruelty compelled her to leave. The husband denies the cruelty and says the petitioner left him without cause. The evidence taken as a whole shows, I think, that the husband was often overbearing and unkind. It falls short of establishing such cruelty as would of itself be a cause of divorce and as would therefore convert the wife’s leaving into the husband’s desertion.

The wife’s petition should be dismissed.

A more difficult question arises on the husband’s cross-petition. It has been well settled by decisions both in this court and in the court of appeals, that although a wife leaves her husband willfully, her desertion does not become obstinate unless persisted in against effort or influence on his part to bring it to an end. It is his duty to make such advances or concessions as a just man would make with a view to terminate it. This is the language of the leading case of Bowlby v. Bowlby, 10 C. E. Gr. 406 (affirmed, 10 C. E. Gr. 570), a case which, as it seems to me, expresses more accurately than any other the true meaning of the word “ obstinate." In Van Wart v. Van Wart, 12 Dick. Ch. Rep. 598, where all the cases are cited, I used the following language: “ In considering what effort or concession must be made in any given case, the conduct of the parties towards each other must be considered. It is obvious that more effort and concession will be required of one whose conduct actually produces or contributes to produce the desertion than of one who is blameless. If the party deserted is not in fault and effort to induce the deserting party to return would probably prove unavailing, it need not be shown. Trall v. Trall, 5 Stew. Eq. 231. In general it may be said that that desertion is to be adjudged obstinate which has resisted 'such effort or concession as the party alleging desertion ought, under the particular circumstances of the case, to have made to bring it to an end.” I shall test the cross-petition by this rule.

The petitioner is the daughter of A. Cary Smith, a naval architect. The defendant is a ribbon manufacturer. The petitioner was of a nervous disposition ; subject to fainting fits, both before and after her marriage, and often hysterical. In the summer of 1895 she began to suffer from ulceration of the uterus, accompánied with left lateral displacement, the effect, as she says, of a cold contracted. In November of that year she went to a specialist for treatment. She did not recover until September of the year following, or about six months after the alleged desertion took place. It seems to be clear that, in the language of the witness Calvin Smith, the parties were not suited to each other. There was constant bickering, caused, according to the husband, by the ill temper of the wife, and, according to the wife, by the harsh, overbearing conduct of the husband. Each accuses the other of profanity. It is quite certain that on some occasions the husband swore at her. I have little doubt that he, by his unkindness and want of sympathy, often made her unhappy. Because of her nervous condition, trifles were at times magnified by her, and there was, no doubt, mutual fault. When, in the fall of 1895, she was suffering from the disease of which I have spoken, marital intercourse between the parties should have ceased. It is admitted that it did not. The wife says it caused her pain, and her testimony in this regard is corroborated by the medical witnesses. She further says that her husband knew that it pained her, and that she did not desire it. The husband says that she did not object to it, and even solicited it. The undisputed fact is, however, that during this period (November to February) she became very unhappy, told her husband she no longer loved him, and talked about a separation. On the Sunday before she left, according to the decided weight of evidence, he, without provocation, in the presence 'of a guest, at the dinner table, raised a carving fork, swore at her, and in an angry tone said, “ I have a good mind to throw this at you.” She left him on February 13th, while he was at his place of business, without having informed him that she was going, and her father and mother assisted her in her preparations for departure. Her mother says that when she was brought to her father’s house in Bayonne she was perfectly wild and didn’t know where she was, but that after some time with kind treatment and care she recovered. On defendant’s return home from work the servant handed him the following note from her father:

“Mr. Thomas Hall:
Deab Sib — I have been obliged to take my daughter home on account of your cruel and unmanly treatment of her. While you may not regard it as such, the effect has been so marked, that after due consideration and advice, I have been obliged to take this step. My lawyers, Cary & Whitridge, 59 Wall street, N. Y. City, will receive any communication that you may desire to make.”

We now come to the point of the case. What did the defendant do ? Did he make those advances or concessions, to bring about his wife’s return, which a just man ought to have made under the circumstances ?

The first thing he did was just what he might have been expected to do. On the day following her departure he went to his father-in-law’s house. He did not see his wife, but he did see his mother-in-law. She treated him courteously and said, so he testifies, “something about her husband and herself feeling very badly about it,”

“ and I [he says] immediately suggested that I also felt badly about it, and I asked her if she realized how I must have felt when I came home that night. She said that she felt very sorry for me.”

He testifies further:

“ Her manner throughout was almost cordial; * * * nor did it show any repulsion for me. I was really surprised at the treatment I received. I was surprised' that she should be so pleasant to me in view of the letter her husband had written me.”

He says that in the course of the interview she stated that she would try to make an appointment for him. On the day after he called, Mr. Smith addressed him, under date of February 18th, as follows :

“Dear Sir — Referring to your visit to my house yesterday, would say that I deem it better for both parties that you should not call there again, but address all communication to Cary & Whitridge, 59 Wall street, N. Y. City.”

On February 21st the defendant wrote as follows to his wife :

“Jersey City, N. J., February 21st, 1896.
“ Dear Virginia — As you are aware, I called at your father’s house to see you, last Monday. Yesterday I read your father’s letter of the 18th inst., which had been delayed in the mail, and noted his suggestion that I should not call again. As I do not wish to create any disturbance, I take this means of saying what I came to say in person, not forgetting my right and duty towards you as your husband:
“ Rumors are or have been current since your unwarranted desertion of me and the home I provided for you, apparently emanating either from you or some member of your family, that reflect seriously on me in my relation with you. No one knows better than you the falsity and absurdity of such reports, and for that reason I am loath to believe that you are responsible for this, but my information seems to show that you are the author of them. In view of all this I demand, as your liusband^knowing that I have always done my full duty towards you and that no one can honestly attach any blame to me — that you cease your scandalous conduct and immediately resume your proper and lawful relation with me.
“ However hard you and I may feel just at present, I think it is our duty to remember that we are man and wife, and we should endeavor to heal all differences. It is not too late to accomplish this. I am willing to forgive. Will you do the same?
“As I am not living in the Bergen avenue house now, will you please address me at the office, stating when you will meet me at the house, and I will be prepared to receive you.
Sincerely your husband,
“Tom.”
“P. S. — It has just occurred to me that possibly you are not acting of your own free will in the matter. Any suggestion from you that you have been coerced into this matter will be pleasing news to me, for I will then take the necessary steps to enable you to come back.”

The defendant says that the rumors alluded to in the above letter related to his marital intercourse with his wife. This letter is neither an advance nor a concession. He takes the ground that he has been wholly in the right and she wholly in the wrong. His language is, “I demand, as your husband— knowing that I have always done my full duty to you— * * * that you immediately resume your proper and lawful relation with me.” The tenor of it is not warranted by the evidence.

"Very shortly after this the defendant went to Mr. Tennant, more, he says, as a friend than as a lawyer. Mr. Tennant went to see Mr. Smith, who courteously received him. Mr. Tennant called Mr. Smith’s attention to the words cruel and unmanly treatment,” contained in his letter of February 13th, and asked him what he referred to. He says he did not succeed in getting any information. He asked Mr. Smith if an appointment could not be arranged between Mr. and Mrs. Hall, and the reply was that it would go hard with Mr. Hall if he went to Mr. Smith’s house. Mr. Smith admits on cross-examination that he likewise said that when he brought his daughter home that was final.

The tone adopted by Mr. Tennant in this interview corresponds exactly with the tone of the defendant’s letter. He assumes that his client is the injured party. He does not bear a message expressing regret for the defendant’s past misconduct, nor does he give any assurance of kinder treatment in the future. He asks for an explanation.

On March 9th Mr. Tennant writes to Mr. Smith, informing him that his daughter has a topaz brooch, an heirloom of the Hall family, given to Mrs. Hall as a present, and he adds, “ as it has been in the Hall family so long, and as young Mrs. Hall appears to care nothing for the family connection, I suppose she will not care to retain it.” In this letter he offers to repay Mr. Smith some money advanced to pay the specialist who had been treating his daughter. To this letter Mr. Smith replies that he would, on a receipt given, place the brooch in.Mr. Tennant’s hands, and that he waived all claim to have the money repaid.

This ends the correspondence. Mr. Hall never afterwards wrote to his wife. He never afterwards sent her any message or token of remembrance, although he knew she was sick, and when he afterwards, on two or three occasions, actually met her on the ferryboat, he neither recognized her nor spoke to her.

Now, I take it that the rule established by the cases referred to is not a technical rule. The advances or concessions which the husband must, as a just man, make, are real advances and real concessions. They must be made at a time and in a manner suitable to the attainment of their object, namely, reconciliation. If the demand for the wife’s return be an angry demand, accompanied by no expression of regret for his own ill-doing— made, too, at a time when it is more likely to embitter than to conciliate — so far from being an advance or concession, it has rather the semblance of a continuation of the very conduct which brought about the desertion complained of.

I have found, as the result of the evidence, that the defendant was overbearing, unkind and sometimes profane. He seems to have been dominated by a supreme regard for self. This feeling crops out in every part of his narrative. He says he was al most heartbroken when his wife left him, but I think his predominant feelings were anger and wounded self-love. If he was as much in love with his wife as he now pretends, I can hardly conceive it possible that he would not have made a more continuous and better-directed effort to accomplish her return. On cross-examination he is asked the question, “ Didn’t you feel that it was your duty to go to her and solicit her return after her recovery from her illness?” and his reply is, “No, sir; she knew that she could come back at any time; my house was kept open for two years [he apparently has in mind the statutory period] after that.”

It is said on behalf of the defendant, and this is the strongest ground he has to go upon, that any effort he might have made would have been unavailing; that his wife had ceased to care for him, and that his father-in-law, being greatly prejudiced against him, would have opposed a re-union. This argument does.not overcome the difficulty with defendant’s case. The law imposes upon him the duty of making a proper effort. If his father-in-law had become prejudiced against him, it was only because he was convinced that his daughter had been ill-used. The prejudice might have been overcome by proper representation on his part. He could hardly be said to have taken the proper means to overcome it, when at so inopportune a time he sent Mr. Tennant to ask an unnecessary explanation, and when this was followed up by a request to return the brooch on the ground that “young Mrs. Hall appeared to care nothing for the family connection.” And if his wife had, during an illness which, if it did not necessitate a temporary separation, at all events made it very desirable, told him she did not love him, it does not appear necessarily to follow that he might not, especially after her health had been restored, by a little kind attention and promise of amendment on his part, have induced her to come back. They had been married but a short time, and nothing had occurred to render the breach past niending. It is quite probable that in any proper effort he might have had the aid of his wife’s mother. The law does not assume that in every case advance or concession will effect their end, but, as it may, it is incumbent on the husband to make it.

The defendant also relies upon rumor as an excuse for not making further effort. He was told, he says, that his wife had received an amatory letter from one Scofield, but the weight of the evidence is that she did not receive such a letter. The defendant says farther that reports w.ere current that Mrs. Hall, whenever she alluded to him, spoke as if she was going to get a divorce; but he never investigated these reports, and he must have heard of them after he had himself made up his mind to break with her. Her feeling was, in any event, the product of his conduct. If that had changed, her feeling toward him might have changed.

I am therefore of opinion that both petition and cross-petition should be dismissed.


text:
    Thomas F. Lane v. The Rector, Wardens and Vestrymen of Calvary Church of Summit.
    [Filed March 3d, 1900.]
    1. The statute providing that it shall not be lawful for the rector, wardens and vestrymen of the Protestant Episcopal Church to dispose of any church real property without the previous consent of the bishop and standing committee of the diocese, the court of chancery cannot, without such consent, direct the church authorities to make a conveyance which when made is declared to be void.
    2. An agreement to sell land must, in order to be binding, comprise all the terms which the parties intended to introduce into it. Upon the facts proven in this case — Held, that there was no concluded agreement to support a bill for specific performance.
    On bill, answer and proofs.

      Mr. Frank Bergen, for the complainant.

      Mr. Edward M. Colie, for the defendant.
   Stevens, V. C.

This is a suit for specific performance of an alleged contract by defendant to convey to the complainant a lot of land in Summit. I think the complainant must fail, for two reasons:

First. It is provided by section 8 of the Religious Societies act that the trustees of such societies may convey and dispose of real estate. It is, inter alia, provided by section 1 of a supplement thereto, approved March 8th, 1877 (Gen. Stat. p. 274-5), that the rector, wardens and vestrymen of Protestant Episcopal Churches shall be vested with the powers granted to trustees of religious societies generally, by the above section, with the following proviso:

“It shall not be lawful for the rector, wardens and vestrymen of any Protestant Episcopal Church * * to alien, grant, assign, demise, let or mortgage any real church property without the previous written consent of the bishop and of a majority of the standing committee of the diocese within which such real church property may be situated, * * * which consent shall he acknowledged or proved and recorded with the deed, lease, mortgage or instrument of conveyance, and without such consent the alienation, grant, assignment, demise, lease or mortgage shall be void.”

The land in question was the site of a church edifice which had been destroyed by fire, and was real church property within. the meaning of the above enactment. The complainant did not show that the consent thereby required had been given. As its policy is to prohibit alienation, unless with the consent of the highest spiritual and temporal authority in the diocese, it is plain that the court cannot, without such consent, direct the church to make a conveyance, which, when made, is declared to be void.

Second. The complainant must fail, in the second place, because he does not show a concluded agreement. The facts on this branch of the case are these: The church was desirous of selling the land. One J. W. Hughes, acting as agent for Lane, the complainant, but not willing to disclose Lane’s name, about April 15th or 16th, 1899, told Mr. Cady, one of the vestrymen, that he had a party who would agree to give $15,000. A vestry meeting was thereupon called, and it was, in the language of the minutes, proposed by Mr. Bulkley and carried, that the offer of $15,000, in cash or its equivalent, made by J. W. Hughes for the old church site, be unanimously accepted.”

The matter was referred to the finance committee, of which Mr. Truslow was chairman. Mr. Bulkley, the proposer of the resolution, testifies:

“The record of the resolution of the vestry was not exactly in the'form as recorded in the minutes; it was in the form of willingness to .sell the property for that money and to accept the offer, and the matter was referred to the finance committee to carry out the negotiations; Mr. Truslow, as the chairman, acted as their agent in the matter; it was in his hands.”

That this is a substantially correct version of the action taken appears from the letter of Mr. Truslow, written the following, day. It reads as follows

“New Yoke, April 18, 1899.
“-Mr. John W. Hughes :
“Dear Sir — I beg to advise you that our finance committee, authorized’ by a resolution of the vestry, hereby accept your offer, on behalf of your principal not yet named, for the property now owned by Calvary Church in Summit, and bounded by Springfield avenue, Keithock place and Bank street, the price to be 315,000, cash or its equivalent. The above confirms our conversation of this morning, and I have wired you since, asking you to meet Mr. Wisner and me at the Summit station this afternoon, at six o’clock (on arrival of the five o’clock train from New York, to arrange the details of sale.
“ Yours truly,
“ J. L. Truslow, Jr.,
Chairman.’ ’

The details alluded to in this letter as shown by the subsequent negotiations were principally three:

First. - There was a mortgage of $10,000 on the property, and the question was whether the property should be conveyed subject to the mortgage or whether it should be paid off. It was agreed by word of mouth that the whole $15,000 should be paid in cash and the mortgage paid thereout and canceled.

Second. There was a sewer assessment on the property, and the second question was whether it should be paid by the purchaser or by the seller. After some discussion -it was agreed by word of mouth that it should be paid by the purchaser.

Third. Within a day or two after the letter was written, two drafts of an agreement to convey were prepared, one under the direction of Mr. Hughes, on behalf of Mr. Lane, and another by Mr. Crawford, on behalf of the church. They differ considerably in form, but they agree in this: the church was stated to' be the party of the first part, and John W. Hughes was stated to be the party of the second part. Immediately after their preparation Hughes met the committee. The respective drafts were compared and the terms of the agreement to be executed were settled. Among the terms was one that Hughes should pay $250 in cash at the time of execution. Hughes did not execute it then, because he said he did not have the money with him. The officers of the church, however, signed and sealed the contract that evening. On the following morning Hughes and Crawford met again; Hughes produced a check, and taking a pen in his hands said that he wanted it understood, before he signed, that he was not to be liable for more than $250, in case his principal failed to carry out the agreement. Crawford declined to agree to this and the parties left the office, Crawford going to the train. On the sidewalk Mr. Wisner, one of the committee, met them. The difficulty was stated to him and he, too, told Hughes that he was without authority to agree to the modification. They then parted. There was no subsequent meeting and the officers of the church very shortly after (April 20th) entered into an agreement to sell to one Schultz. The present suit was commenced on April 27th.

The claim of Lane is that the agreement was concluded either when the resolution was passed or when the Truslow letter was mailed. Neither of these contentions appears to me to be sound. “An agreement,” says Lord Wensleydale, in Ridgway v. Wharton, 6 H. L. Cas. 268, “ to be finally settled must comprise all the terms which the parties intended to introduce into the agreement. An agreement to enter into an agreement upon terms to be afterwards settled between the parties is a contradiction in terms.” Here it is obvious, from what subsequently took place, that neither the resolution nor the letter comprised and finally settled all the terms. The resolution of the vestry did indeed name the price, but then it left it open to its committee to settle the other terms. Truslow’s letter, while accepting the price offered, asks for a meeting to arrange “the details,” and when this meeting takes place it is at once seen that these details comprise matters of such importance as the payment of the sewer assessment, the disposition of the mortgage and the question who shall be bound as vendee.

The case in this respect strongly resembles Brown v. New York Central Railroad Co., 44 N. Y. 80, in which the letter mentioning the price stated that “ other details would require consideration.” The court, looking at the subsequent negotiations for the purpose of ascertaining what these details were, said that they constituted essential elements of the contract not implied by or to be inferred from what the parties had agreed upon, but left open for future consideration and adjustment, and that such being the case, the contract lacked completeness and no action could arise upon it. In the case at bar the “ details ” likewise constituted important elements of the contract and could not be implied by or inferred from either the resolution or the letter, for of the two liens on the property it was agreed that one should be satisfied out of the price coming to the vendor and that the other should be paid by the vendee. Certainly this was an adjustment which no court would have deduced from what had been written.

It is also plain that one of the terms of the agreement, actually made by word of mouth, was that Hughes should sign a written agreement. This was a matter of unusual importance because of his unwillingness to disclose his principal. He subsequently refused to sign, not wanting, on further reflection, to be bound beyond $250. In the case already cited, Lord Wensleydale says: “ If the understanding between the parties is that they are to reduce the agreement into writing, and that they are not to be bound until it is reduced into writing, then either party may withdraw ” (before it is signed). Mr. Hughes, at the last moment, took advantage of this right to withdraw, and so the only paper which expressed all the terms of the agreement, concluded by word of mouth, never became operative because not signed by him.