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then in his possession (not stating what books, if any, were in his possession), and that such permission was refused. She says she believes that the suit was never authorized by the corporation, but that it has been brought in its name by individuals who had no authority, and that in 1904 all the property and assets of the complainant were sold, and that thereupon it ceased to transact business. The prayer of the petition is that this court compel the complainant to bring into this state all the minute books, stock books, transfer books, books of account, including cashbooks, daybooks, journals, ledgers, and all other books, receipts, documents, and vouchers showing the business transactions of the complainant from its incorporation to the present time, and to permit the attorney and solicitor of the petitioner to make an examination thereof under such restrictions as the court may impose.

court may make an order for the production by the complainant of such documents in his possession or power relating to the matters in question in the suit as the court shall think right, but this discovery is not unlimited, and will be extended only to such documents as appear to be necessary for the purpose of enabling the suitor to plead properly. Daniell's Ch. Pl. & Pr. (6 Am. Ed.) *1817 et seq. In the light of the rule above mentioned I do not see how the petitioner is entitled to an inspection of all the books, receipts, documents, and vouchers showing the business transactions of the complainant from its incorporation to the present time, as prayed for.

Let us see now what are the allegations of the bill, and what its prayer, so that we may ascertain what documents of the complainant the defendant needs to inspect. The bill avers that Daniel Robert, the defendant's Section 44 of the corporation act is in- testator, was treasurer of the complainant voked as authority for the order prayed for. corporation, and that he, together with its An examination of that section will show president, controlled the financial policy of that it gives this court authority only to the company; that immediately after its summarily order brought into this state the organization the complainant became finanbooks of corporations organized under our cially straightened, and sorely in need of laws. This being so, the section is not avail- funds to carry on its business, and thereable on the present application. But, the petitioner further urges that, irrespective of upon the defendant's decedent, in conjunction with the president and his brother, enthe statute, this court has the inherent pow-tered into a financial policy that would acer to direct the complainant to give her an inspection of its books, and cites Lawless v. Fleming, 56 N. J. Eq. 815, at page 816, 40 Atl. 638, as authority. The case bears out the petitioner's contention. Said the Court of Errors and Appeals in that case: "The right of the Court of Chancery to make such an order cannot be questioned, and has long been settled, both by established custom and well-known authority. It is one of the inherent powers of a court of equity." In Daniell's Ch. Pl. & Pr. (6 Am. Ed.) it is stated that it is the practice of the Court of Chancery to allow a party to apply before the hearing of a suit, for the production of documents, relevant to the matters in question, which are in the possession or power of the opposite party; but this power to order the production of documents arises out of the general jurisdiction for the purpose of discovery, which, in all proceedings in equity, constitutes an important feature, and, in some instances, forms, as it were, the very foundation for the interference of the court; that the mere circumstance of the documents being abroad is no answer to an application for their production, but in such a case reasonable time is given the party to bring them into the country, and refusal to comply with the order is considered the same as if the documents were here, and the party refused to produce them; that where discovery from the complainant, either concerning matters of fact, or the contents of documents, was necessary to a defendant for the purpose of enabling him to complete his defense, such discovery was formerly had by means of a

crue to their own private benefit and the crue to their own private benefit and the injury of the complainant, by causing it to execute a mortgage to Richard D. Boitel (brother of the president), trustee, for $10,000, the actual consideration therefor being $4.000 loaned, which was subsequently repaid with a bonus of $4,000, and by causing the corporation to execute another mortgage to the same mortgagee, trustee, covering the same land for $10,000, the actual consideration therefor being $4,500, and that the defendant's testator participated in the bonuses with the other parties, and that he became and (his estate) now is liable to the complainant for all loss occasioned thereby; that the complainant is entitled to an account of the moneys received by the defendant as mentioned, or by any other of the directors of the complainant corporation, or any other person with his knowledge or concurrence. The prayer is that the defendant may be decreed to account for such money as was paid to or received by him (in his lifetime), or paid to or received by any other agent or director of the complainant company, or any other person with his consent, out of the assets of the complainant by way of bonus over and above any sum or sums actually advanced to it under the mortgages, or either of them. The minute book will show whether or not the suit was authorized to be brought by action of the board of directors, and the defendant is entitled to an inspection of that book. The defendant is also entitled to an inspection of such entries in any other books of the corporation

reference has been made. Also, she is entitled to an inspection of such receipts, documents, and vouchers as bear upon the particular transactions.

An order will be advised that the complainant produce at the office of its solicitor in Jersey City, for the inspection of the defendant, its minute book, and such other books as contain entries which show the mortgage transactions, and such receipts, documents, and vouchers as bear upon those transactions. Inspection must be restricted to an examination of such data in the books and documents to be produced as relate to the particular transactions which are made the subject-matter of the bill of complaint. The defendant will have 20 days in which to plead or answer the bill after production and inspection by her or her solicitor, and in the meantime all proceedings in the cause shall be stayed. By demanding the production of more documents than she is entitled to inspect the defendant has disentitled herself to the costs of this motion. The order will be made without costs to either party as against the other.

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PUBLIC AUTHORITIES.

A grant was made by a township committee and a board of health to a cemetery company to locate its burying ground within the township, which consent was induced by a contract on behalf of the company to build and cause to be operated a trolley line, not as a means of reaching the cemetery merely, but as an accommodation to the residents of a section of the township, irrespective of cemetery uses.

Held, that the township committee and the board of health in making the grant were exercising quasi judicial functions, and held, that they were improperly influenced by the contract to build and operate the trolley road. [Ed. Note. For other cases, see Cemeteries, Cent. Dig. § 11; Dec. Dig. § 9.*] (Syllabus by the Court.)

Two writs of certiorari by Dennis Long and another, the first to review an ordinance of the Township of Union and an agreement between it and the Clinton Hill Cemetery Association, and the second to review a resolution of the Board of Health of the Township of Union. Ordinance and resolution vacated. Argued June term, 1909, before REED, BERGEN, and VOORHEES, JJ.

Lindabury, Depue & Faulks, for prosecutors. John K. English, for Union Tp. Herman A. Berg and W. D. Edwards, for Clinton Hill Cemetery Ass'n.

REED, J. The first of the two consolidated writs of certiorari brings up an ordinance passed by the township committee of the

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township of Union, county of Union, on March 18, 1909, entitled "An ordinance granting the consent and approval of the township committee of the township of Union to the Clinton Hill Cemetery Association to locate and establish a new cemetery or burying ground, in the township of Union." The writs bring up, also, an agreement between the Clinton Hill Cemetery Association and the township of Union, which agreement was executed on March 16th, and was executed as an inducement to procure the passage of the ordinance of March 18th. The second writs bring up a resolution adopted by the board of health of the township of Union on March 18, 1909, granting the consent and approval of said board to the Clinton Hill Cemetery Association to locate a new cemetery in said township. The purpose of the prosecutors is to have the consents given by this ordinance, and this resolution, vacated.

The Clinton Hill Cemetery Association is ' incorporated under the general cemetery statute (1 Gen. St. 1895, p. 348), and its supplements. By force of a supplement to the cemetery act, which supplement was approved April 24, 1906 (P. L. 1906, p. 283), it could not locate its burying ground within the township of Union without the consent of the township committee and the consent of the board of

bealth of the township. The members of the township committee, together with the assessor, and a physician appointed by the township committee, constitute the local board of health. Gen. St. 1895, p. 1636, § 10. On December 22, 1908, this corporation made application to the township committee and to the board of health of the township of Union for their respective consents to the location by the said association of a new cemetery in the township of Union. After this application was made, the township committee and the board of health of the township called a public meeting, although the statute does not require notice, and heard the sentiment of those attending the meeting, which sentiment, with the exception of that of two persons, was opposed to the grant, although it was represented on behalf of the applicants that, if consent was granted, the cemetery association would present to the township bonds amounting to $10,000 for the purpose of insuring the township against loss arising from the immunity of the cemetery property from taxation. No action was then taken by the township committee. Thereafter the cemetery association offered the following inducement to obtain the requisite consent of the township authorities: First, that it would give 10 bonds of $1,000 each, payable in 10 years, to bear 6 per cent. interest, to be secured by a mortgage on the lands of the cemetery association, and to be guaranteed in such manner as should meet the approval of the township attorney; second, a promise to construct an electric street railway from Irving

ton, by way of Stuyvesant avenue, adjacent | and appurtenances upon the said avenue from to which avenue the cemetery should lie, to the corner of Stuyvesant avenue and Morris be operated by the Public Service Corpora- avenue, in the township of Union in the tion, for a 5-cent fare. Another public meet- boundary line of the township of Irvington, ing was called by the township committee, with a loop of the Public Service Railway on and by reason of the trolley proposition a Halstead avenue and Forty-Third street, in change of public sentiment was effected in the township of Irvington, by way of Stuyvefavor of a consent to the location of the sant avenue, Fortieth street, and Halstead avecemetery within the township. Such approv- nue. Walker agrees to procure the operation al was given by the township committee and of said trolley road from the Meeker Inn, in by the board of health. The understanding the township of Union, along Stuyvesant avethus reached was consummated by a paper nue, Fortieth street, and Halstead avenue, executed by the Clinton Hill Cemetery Asso- and from thence over the tracks of the Public ciation on March 16, 1909. By this instru- Service Corporation to the depot of the Pennment the cemetery association covenanted sylvania Railroad Company, at Market street, with the township of Union that if the town- in the city of Newark, upon the payment of a ship committee would grant to said cemetery 5-cent fare for the entire distance, with cerassociation the right to locate a new cemetery tain transportation privileges; the cars to be within the corporate limits of the said town- run within the hours of 6 a. m., and 12 p. m. ship, at the place described in the application Walker further agrees to pay to the township for such consent, the association would deliv- the yearly sum of $450 for 20 years, to keep er to the township committee, for the benefit Stuyvesant avenue in repair. Walker also of the township. 10 of the debenture bonds agrees to furnish a bond to secure the perto be issued by the cemetery association, cov-formance of his covenant. Walker also agrees ering the lands of the said association; each to bear and pay all the expenses incurred by bond being of the denomination of $1,000, bearing 6 per cent. interest, and expiring 20 years from the date thereof. The association also covenanted to grant to the township a plot of land within the limits of the cemetery, to be used for the interment of the pauper dead of the township. The association also covenanted to set aside 5 per cent. of the receipts from the sale of burial lots, for the purpose of securing the maintenance in good order of the lands devoted to cemetery purposes. This paper also recites that it was understood that in the event of the consent to locate by the municipal authorities being revoked, set aside, or declared void by any court or body having jurisdiction thereover, then the paper shall be null and void. The paper further recited that it was mutually agreed that the township of Union reserved the right to revoke the franchise for the location of the cemetery, if Thaddeus L. Walker, or his assigns (with whom the said township had entered into an agreement in writing, bearing even date with the paper containing the recitation), failed to construct the trolley line, and to build the roadway specified and required by said agreement; such revocation to be made within six months after the limitation of the time in the said agreement, and on three months written notice to said Walker, or his personal representatives or assigns.

The agreement entered into on the same date, March 16th, between the township of Union and Thaddeus L. Walker, referred to in the preceding paper, provides for the construction and operation of a trolley road by Thaddeus L. Walker, and for certain acts to be done by the township in aid of that enterprise. In it Walker agrees to incorporate a company to operate an electric street railway on Stuyvesant avenue, and he agrees to se

the township of Union in any condemnation proceedings, or other expense necessary to the widening of Stuyvesant avenue, including such damages occurring to property owners on Stuyvesant avenue as the township should be called upon to pay. These are the covenants of Walker. The township, in the agreement, promises to fix the limits and route of Stuyvesant avenue within the limits of the township, and, by condemnation or otherwise, to widen Stuyvesant avenue on its southeasterly side, so that it shall have a uniform width of 70 feet from Morris avenue to the boundary line of the township of Irvington. The township also agrees to grant its consent to the trolley company to place its road upon Stuyvesant avenue.

The board of health, in acting upon the question of granting a right to locate a cemetery, was exercising a quasi judicial function. This was so held in respect to the action of the State Board of Health in passing upon the same question upon appeal. Dodd v. State Board of Health, 67 N. J. Law, 463, 51 Atl. 456. So, also, were the duties of the township committee, the members of which constituted a majority of the board of health, quasi judicial in character. The reasoning by which, in the case of Traction Company v. Board of Works, 56 N. J. Law, 431, 29 Atl. 163, affirmed 57 N. J. Law, 710, 34 Atl. 1134, it was held that the board of public works, in granting by ordinance a permission to a trolley company to lay its tracks in certain streets in the city of Camden, was exercising quasi judicial functions, leads logically to the conclusion that the township committee were, in the present cases, exerting similar powers. It is entirely settled that a person acting in a judicial capacity should not be influenced by any personal interest; and if it appears that the conduct of such an officer,

ber, taking part in the proceedings, was so influenced, the judgment or quasi judgment will be declared void upon certiorari. Winans v. Crane. 36 N. J. Law, 394; West Jersey Trac. Co. v. Bd. of Pub. Works, 56 N. J. Law, 431, 29 Atl. 163; Drake v. Elizabeth, 69 N. J. Law, 190, 54 Atl. 248.

amount of taxes lost by the township. There was neither a waiver of exemption from taxation nor an agreement to secure the township against loss resulting from the immunity of this property from taxation when devoted to cemetery uses. The contract was that a sum of $10,000 should be paid to the township. Yet the property would still become immune from taxation. It would be eliminated from the ratables, not only as a subject for the imposition of township taxes, but for county and state taxes as well. While the inhabitants of the township might be more than reimbursed for the additional tax which would fall upon the remaining property in the township, the owners of property elsewhere in the state would secure no compensation for the additional burden imposed upon their property by the removal of this cemetery property from the ratables. So far as appears, the amount to be received by the township might have been based at $100, instead of $10,000. In view of the far-reaching effect of the grant of a right to appropriate this land for cemetery purposes, it is questionable whether the township committee and the board of health were not illegally influenced in deciding whether the grant should be made by an interest as residents of the township, arising out of the amount to be received by the township.

The question remains whether the inducements held out by the cemetery company were such as to illegally influence the judgments of the township committee and the board of health. In the solution of this question, we will assume that the township committee, before it grants consent, may exact conditions which look to the proper management and usefulness of the cemetery. The ground upon which control over burial plots was placed under police regulations is that, while the devotion of some grounds for burial purposes is necessary, yet the amount of space, and the location and surroundings of a cemetery, should be controlled by some governmental body, so that the least injury shall be done to other property and to the public by the location of the burying ground. The degree in which the place shall subserve the purpose of the public is a factor in determining the location of the cemetery, and accessibility to the place is a fact to be considered. Therefore a condition, the performance of which is secured by contract or otherwise, that a road to the cemetery shall be opened, or kept in But there is a feature of the contract, repair, may be unobjectionable. So, again, a which, we think, was clearly an illegal incondition or contract that the cemetery com- ducement to the judicial action of the company shall pay taxes upon the property, or mittee and the board. The consent was basinsure the township against its loss by rea-ed upon the contract of Mr. Walker, already son of the statutory immunity of cemetery property from taxation, would, I think, be legal. The cemetery act (1 Gen. St. 1895. P. 350, § 8, and p. 360, § 56) provides that cemetery lands and property of any association, a bond and mortgage given to secure the pur

chase, shall be exempt from all public taxes, rates, and assessments. This clause did not constitute a contract of exemption. Cemetery Company v. Newark, 50 N. J. Law, 66, 11 Atl. 147. If it did constitute such a contract, nevertheless it would not prevent the company from waiving the exemption thus granted. Givin v. Wright, 41 N. J. Law. 478, affirmed 43 N. J. Law, 455; 12 Cyc. 382.

set out, to build and cause to be operated a that the troliey was to offer facilities for trolley line. The testimony clearly shows transportation to the inhabitants of this section of the township, irrespective of cemetery uses. This promise constituted a bribe which changed the sentiment of those in the vicinage from opposition to friendliness toward the cemetery project, and undoubtedly influenced the judgment of the committee and the board of health in arriving at the conclusion that the location for this burying ground at this point should be permitted.

For this reason we think both ordinance and resolution should be vacated.

There would therefore, I think, have been no infringement of public policy had the It may be observed that the right conferred cemetery company agreed to waive its exemp- by P. L. 1906, p. 283, upon 10 citizen freetion from taxation, or agreed to pay the holders of the township to take an appeal to amount which would have been received from the State Board of Health from the decision the tax upon this property if left free from of the local authorities, does not strip this cemetery uses. While the contract executed court of its power to set aside the action of contained no reference to the purpose for the local authorities. When the committee which the 10 $1,000 bonds were to be given to and board became disqualified by reason of the township of Union by the cemetery com- the presence of illegal influences or interests pany, it does appear, from the testimony taken to decide the judicial question involved, each to be used upon this hearing, that the purpose person affected had a right to challenge the was to secure the township against the loss decision by the employment of a writ of cerof taxes upon this property. It is perceived tiorari. Such person is not deprived of such that the amount received by the township right because 10 persons may take an appeal

Certiorari to Court of Common Pleas,

CORBETT v. YOUNG MEN'S CHRISTIAN Ocean County. ASS'N OF MADISON.

(Supreme Court of New Jersey. Nov. 8, 1909.) APPEAL AND ERROR (§ 10*)-JUDGMENT OF COMMON PLEAS-REVIEW BY WRIT OF ER

ROR.

Judgments of the common pleas on appeal from small cause courts are reviewable only by certiorari, and not by writ of error.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 10.*]

(Syllabus by the Court.)

Error to Court of Common Pleas, Morris County.

Action by John V. Corbett against the Young Men's Christian Association of MadiJudgment for defendant was affirmed in the Court of Common Pleas, and plaintiff brings error. Dismissed.

Argued June term, 1909, before GUMMERE, C. J., and GARRISON and PARKER, JJ.

Vreeland, King, Wilson & Lindabury, for plaintiff in error. Willard W. Cutler, for defendant in error.

PARKER, J. This writ of error brings up a judgment of the Morris county common pleas, rendered on appeal from the judgment

of a small case court.

In Trimmer v. Bonnell, 65 N. J. Law, 66, 46 Atl. 768, this court held that, while judgments of the common pleas in suits originally instituted in that court are reviewable by writ of error, judgments on appeal from a small cause court may be reviewed only by writ of certiorari. The statutes cited in the opinion by Justice Van Syckel are still in force. Section 66 of the justice's court act of 1846 became section 95 of the revised act of 1874 (Revision 1877, p. 556; Gen. St. p. 1882), and is now section 91 of the revised act of April 8, 1903 (P. L. p. 278), while section 4 of the circuit court act now appears as section 92 of the revised small cause court act.

For the reasons given in Trimmer v. Bonnell, the writ of error will be dismissed, with costs.

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(Supreme Court of New Jersey. Oct. 23, 1903.) CARRIERS ($405*)-LIABILITY FOR BAGGAGE LIMITATION ON AMOUNT.

When notice of limitation is given by a railroad company according to section 48 of the act of 1903 (P. L. 1903, p. 670), and the lost baggage weighs less than 100 pounds, the liability of the company is limited to the amount of $1 for each pound, or to the rate of $100 for every 100 pounds weight.

[Ed. Note. For other cases, see Carriers, Cent. Dig. § 1546; Dec. Dig. § 405.*] (Syllabus by the Court.)

Certiorari by the Central Railroad Company of New Jersey to review a judgment of the Ocean County Common Pleas against it in favor of Edmund J. Westhall. Judgment reversed.

Argued June term, 1909, before REED, BERGEN, and VOORHEES, JJ.

A. E. Johnston and H. E. Newman, for plaintiff. George Holmes, for defendant.

REED, J. The facts found by the court of common pleas were as follows: On July 23, 1907, the plaintiff delivered to the defendant at Lakewood a certain suit case containing wearing apparel valued at $90.65 for carriage to Newark, N. J. The suit case and contents weighed less than 50 pounds, and was checked by defendant's agent at Lakewood, who gave the plaintiff a duplicate check. The plaintiff was a holder of a 26trip family railroad ticket, which entitled him or members of his family to 26 rides on defendant's trains between Lakewood and New York. On the day in question both plaintiff and his wife rode on this ticket, and the price of those two fares was the consideration paid by the plaintiff to the defendant for the carriage of plaintiff, his wife, and the said suit case. The Central Railroad Company of New Jersey is a common carrier. The suit case was lost through the negligence of the defendant or its servants. The 26-trip ticket above mentioned had the following paragraph printed on the back thereof: "6th. That wearing apparel only to the extent of 150 lbs. shall be taken as baggage without charge; and that the company's liability, in case of its loss or damage, shall not exceed one dollar per pound." The defendant had placed notices in and about its station at Lakewood, N. J., for the purpose of giving notice to its patrons of the provisions of an act of the Legislature of New Jersey entitled "An act concerning railroads" (Revision 1903; P. L. 1903, p. 670, § 48). The court gave judgment for $90.65, while, as is perceived, the baggage of the plantiff weighed less than 50 pounds.

The defendant takes the ground that its liability was limited to the sum of $1 for each pound weight of the goods lost. It places this insistence upon its construction of section 48 of the revised act concerning railroad (P. L. 1903, p. 670). The language of this section is as follows: "Any railroad company may, by giving notice to any person offering goods, merchandise or baggage for transportation on the railroad or in the vessels of the company, limit their responsibility as carriers thereof to one hundred dollars for every one hundred pounds weight, unless such person shall pay to the company by way of insurance, for any additional amount of re

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