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442, 15 Atl. 406, 1 L. R. A. 342. If payment GRIFFIN, V. C. The material facts in be secured in part by each method the total this case are as follows: On the 23d of payments will not be permitted to exceed the November, 1897, one Darling conveyed to debt.

Spangenberg and wife, the immediate granOur statute has, to a certain extent, modi- tors of the defendant Kathryn Muller, cerfied these rules. Since the statute made it tain premises on West Side avenue in Jersey the duty of Mrs. Wagner to give notice of City by deed containing the following restricher security, and unless she relinquished her tions: security to apply it to her debt, and then to "That the party of the second part, their heirs obtain a dividend from the estate upon the and assigns, shall not at any time previous to excess of her debt, she should not be per- September 1, 1903, erect nor cause, nor promitted, through failure to comply with the said' premises any building other than a store or

cure, permit or suffer to be erected upon the statute, to secure a greater benefit than she dwelling having a stone or brick foundation, and could obtain by a compliance with the stat- having at least two stories above such foundaute. So long as the statute stands, we think tion, which building shall not be used for any

other purpose than as a store or dwelling withshe must apply the security to her debt in in the time limited; that no building shall be the first instance, and then obtain a divi- erected nearer than five feet to the street line of dend from the estate only upon the excess shall be erected on the said property.

West Side avenue. No two story clothes poles of her debt. This remedy, we think, she was

"It is expressly agreed that no wines, beers entitled to, even though she had given no nor liquors of any kind shall be sold or manunotice to the commissioners of her security. factured upon the said premises."

In this case the security was more than Afterwards, by deed dated the 1st of Desufficient to pay her debt, and the judgment cember, 1898, Darling conveyed to the comof the court properly provides for the can- plainant lands on Duncan avenue, about 25 cellation of her claim, as allowed by the com- feet west of the rear line of the Spangenmissioners upon the payment from the pro- berg lot, which deed contained the followceeds of the security of the amount found | ing restrictions: due her by the court. The administrator

"That the party of the second part, his heirs upon Mr. Wagner's estate has no just cause or assigns, shall not at any time previous to of complaint with the terms of the decree. September 1, 1903, erect, or cause or procure,

The record does not show that the allow-permit or suffer to be erected upon the said ance by the commissioners of the plaintiff's dwelling 'having a stone or brick foundation, and

premises, any building other than a store or claim was accepted as final by the trial having at least two stories above such foundacourt; hence we have no occasion to consid- tion, which building shall not be used for any er reason of appeal 4. Moreover, as we un

other purpose than as a store or dwelling, with

in the time above limited. That no dwelling derstand the finding, it tends to show that shall be erected nearer than ten (10) feet to the the court found the amount of the claim and street line. It is, however, understood and did not accept the allowance of the commis- agreed that stables and barns may be erected sioners as final.

upon the rear half of the said premises, which

buildings, shall, however, be used only as staThere is no error. In this opinion the bles and barns, and shall be kept clean and free other Judges concur.

from nuisance.

"It is expressly agreed, that no wines, beers or

liquors of any kind shall be sold or manufac(83 N. J. Eq. 599)

tured upon said premises. ARMSTRONG v. GRIFFIN et al. (No. 38–47) “No two-story clothes poles shall be erected on

the said premises." (Court of Chancery of New Jersey. Oct. 2, 1914.) COVENANTS (8 52*)–CONSTRUCTION-RESTRIC This deed was offered in evidence at the TIVE COVENANTS.

Where a deed prohibited the grantee. his hearing on the order to show cause by conheirs and assigns, at any time before 1903 from sent. erecting, upon the land granted, buildings other Mrs. Muller leased the premises which she than of a certain class, from building nearer purchased from Spangenberg to Griffin, who than five feet to the street line, from erecting had a license to sell liquor at another place two-story clothes poles, and from selling or man had a license to sell liquor at another place ufacturing liquors upon the premises, and other transferred by the mayor and aldermen of deeds by the same grantor to land in that local- Jersey City to permit the sale of liquor on ity contained similar covenants which were also limited to the year 1903, all of the restrice said premises, and Griffin was proceeding tive covenants stand alike and are binding only to fit up the premises for the sale of liquors until the year 1903, and at the end of such when the complainant filed his bill to retime liquor might be manufactured or sold on strain the defendants from leasing or using the premises.

[Ed. Note. For other cases, see Covenants, or permitting to be used, the said premises, Cent. Dig. § 51; Dec. Dig. $ 52.*]

771 West Side avenue in Jersey City, for the Bill by John Armstrong against Joseph

sale or manufacture of wines, beers, or liqWilliam Griffin and another.

uors, etc. Upon filing said bill an order to On order to

show cause was granted, which included a show cause why a temporary injunction

restraint against the defendants selling or should not be continued. Order discharged.

manufacturing wines, beers, or liquors of any Joseph Anderson, of Jersey City, for com- kind on the premises. plainant. Robert Carey, of Jersey City, for defendant Muller. Joseph F. Farmer, of Jersey

A comparison of both sets of restrictions City, for defendant Griffin.

shows that the third restriction in the deed *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

to the complainant, against the sale of liq-, intended that the second and fourth restricuors, is the fourth restriction in the deed to tions as to the building line and the clothes Spangenberg; and the third restriction in the poles should stand, when, at the same time, deed to Spangenberg is the fourth restriction the owner might cover the whole lot with any in the deed to the complainant. Both re character of building without restriction. strictions, however, are substantially the If the second and fourth restrictions are so same.

tied to the first that they also ceased to be The defendants contend that all the re-operative after September 1, 1903, then, to strictions contained in said deed expired my mind, a plain reading of the four reon September 1, 1903; whereas, the com- strictions indicates that all four were to explainant contends that there are practically pire on September 1, 1903. The complainfour separate and independent restrictions, ant says that the object of the restricall disjoined, the time limitation applying only tions was to create a neighborhood plan for to the first, namely, as to the style of build- residence purposes. I am satisfied that this ing to be erected on the premises, which re- is true; but of what value would such a striction became inoperative on and after plan be after the 1st of September, 1903, if September 1, 1913; the second, which pro- any character of lawful building which the hibits the erection of a building within a owner might see fit to construct could be certain distance of the street line; the third erected upon the land? The owner might in the complainant's deed and the fourth in erect factories and other buildings which the Spangenberg deed, directed against the might be perfectly lawful and yet tend largesale and manufacture of liquors; and the ly to depreciate the value of the surrounding fourth in the complainant's deed and the property which had been developed on the third in the Spangenberg deed, which regu- neighborhood plan and destroy it for resilates the height of the clothes poles which dential purposes. might be erected. And he must so contend, If the framer of the restrictions had inbecause if the time limitation is annexed to tended that any of them should continue aftany one of the subsequent restrictions iter the 1st day of September, 1903, he should must necessarily apply to all, for the reason have so provided by clear and unambiguous that there is nothing in the instrument which language. This he has not done. On the indicates that the framer of the restrictions other hand, taking the scope and purpose of intended that there should be any distinction the restrictions, it seems to be clear that made between the second, third, and fourth they were all to endure until September 1, restrictions as to the period of their exist- 1903. If this interpretation is doubtful, ence. It is therefore necessary to examine then the restrictions are ambiguous. In into the character of the restrictions to de- either event, the result reached must be the termine if the second, third, or fourth re- same, namely, that the complainant is not strictions, or either of them, are so related entitled to an injunction. Fortesque v. Carto the first that the restrictions would lack roll, 76 N. J. Eq. 583, 586, 75 Atl. 923, Ann. utility after the first became inoperative. Cas. 1912A, 79 (Court of Errors, 1909).

In dealing with the "third and fourth re I will advise an order discharging the strictions” for the sake of brevity I will re-order to show cause. fer to the fourth restriction in the Spangenberg deed as being the "third restriction,"

(83 N. J. Eq. 610) and to the third restriction in the Spangen

In re FRITZ'S ESTATE. (No. 2908.) berg deed as being the "fourth restriction," thus making the restrictions conform In or- (Prerogative Court of New Jersey. Sept. 25,

1914.) der of sequence in the complainant's deed. 1. COURTS ($ 198*)— NEW JERSEY-ORPHANS'

The first, second, and fourth restrictions COURT-JURISDICTION. have to do with the building; the first is The orphans' court being a creature of statas to the style of the building to be erected ute, invested with special powers and jurisdic

tion in derogation of the powers of the courts prior to September 1, 1903; the second is established by the Constitution, it can exercise referable to the location where the building no powers beyond those authorized by statute. mentioned in the first restriction may be [Ed. Note.-For other cases, see Courts, Cent. erected; the fourth relates to the height Dig. $$ 469, 471-475, 478; Dec. Dig. g'198.*] of the clothes poles to be used in connection 2. COURTS_(8 201*)-NEW JERSEY-ORPHANS'

COURT-JURISDICTION. with the building mentioned. This must, of

Where petitioner, the executrix of an esnecessity, be so, because after the 1st of Sep- tate which was indebted to defendant's testator, tember, 1903, the owner of the premises was recovered in her individual capacity a judgnot limited to the erection of a store or ment against the estate of defendant's testator, dwelling; he might erect a factory build- had to compel defendant to sell her testator's

a factory build- the orphans' court, in which proceedings were ing extending the full width of the lot; land to satisfy execution on the judgment, is he might erect telephone telegraph without jurisdiction to determine a controversy poles to any height on the lot. It seems

between petitioner and defendant as to the liaunreasonable to say that after the first bility of the estate of which petitioner was

say that after the first executrix, it not appearing that such estate restriction had expired the draughtsman was insolvent; for the orphans' court has no

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

jurisdiction over disputed claims save in case of , petitioner had requested the executrix of insolvent estates.

Adam Fritz to take proceedings to obtain [Ed. Note. For other cases, see Courts, Cent. a sale of the whole or a part thereof for Dig. $8 86, 87; Dec. Dig. $201.*]

the payment of said judgment, in accordance 3. EXECUTORS AND ADMINISTRATORS ($ 454*) -- with the orphans' court act, and that she has

EXECUTION AGAINST ESTATE PROPERTY
SUBJECT TO LEVY.

refused to comply with such request for the Where an execution in favor of the peti-space of at least one month after being so tioner against the estate of defendant's testator required, and the orphans' court was asked was returned unsatisfied, the petitioner may to make an order for the sale of said lands, compel a sale of his lands, and cannot be required to seek satisfaction out of the proceeds of aor a part thereof, for the payment of said note held by deceased against an estate of which judgment, under section 97 of the orphans' petitioner was executrix; for choses in action court act, Laws 1898, p. 715.

subject to execution only when made so by statute, and there is no statutory authority to

The answer of Catherine Fritz, executrix levy upon bills and notes.

as aforesaid, practically confesses the facts [Ed. Note.-For other cases, see Executors set forth in said petition, and seeks to avoid and Administrators, Cent. Dig. $8 1909–1928; the relief which would necessarily follow Dec. Dig. $ 454.*]

thereon, upon the following grounds: 4. EXECUTION ($ 88*)-SALES-PROPERTY.

That said Barbara Thomas, one of the peA judgment creditor can sell personalty or realty at his option on execution.

titioners, and owner of the said judgment, [Ed. Note.-For other cases, see Execution, for all practical purposes, is the surviving Cent. Dig. § 183; Dec. Dig. § 88.*]

executrix of the last will and testament of 5. EXECUTORS AND ADMINISTRATORS ($ 341*)- Peter Fritz, deceased, of whom the said PAYMENT_OF CLAIMS—PROPERTY SUBJECT- Adam Fritz was a son, said Adam Fritz in SALE OF REAL ESTATE-DEFENSES.

In a proceeding to compel the executrix of his lifetime being also an executor of the a judgment debtor to sell land to satisfy an ex- said last will and testament of Peter Fritz, ecution, an order of the orphans' court direct- deceased; that the estate of Peter Fritz, deing a sale of the realty is not erroneous, where ceased, is indebted to the estate of Adam there was not sufficient personalty to satisfy the claim, because the deceased was entitled to Fritz, and that if this indebtedness were a distributive share in an estate of which the paid to the executrix of Adam Fritz she judgment creditor was executrix; for, while would then have in hand sufficient personal the personalty of a decedent is primarily liable for his debts, a creditor is entitled to compel property with which to pay the judgment of sale of lands where there is not sufficient per- Barbara Thomas; and upon these facts the sonalty on hand to satisfy his claim.

appellant, Catherine Fritz, not only resists [Ed. Note.-For other cases, see Executors the granting of the relief prayed for in the and Administrators, Cent. Dig. $$ 1434–1437; petition, but, by way of cross-petition, she Dec. Dig. & 341.*]

attacks the answer and prays for affirmaAppeal from Orphans' Court, Passaictive relief, by asking the court to make an County.

order directing the said Barbara Thomas to In the matter of the estate of Adam Fritz, file an account of her administration of the deceased. Petition by Minnie E. Dodd, for estate of Peter Fritz, and to sell the real esthe use of Barbara Thomas, to require Cath-tate of the said Peter Fritz, for the purpose erine Fritz, the executrix, to sell the real of paying to the executrix of Adam Fritz, property to satisfy an execution. From an the appellant, the money so due on said esorder of the orphans' court directing a sale tate.

To this answer and cross-petition the of the land, the executrix appeals. Order

respondents replied that, by virtue of a ceraffirmed.

tain writing under the hand and seal of said Michael Dunn, of Paterson, for appellant. Barbara Thomas and said Adam Fritz, her Wayne Dumont, of Paterson, for respondent. brother and coexecutor, made during his life

time, said money so due from the estate of LEWIS, V. 0. The appellant, Catherine Peter Fritz to the estate of Adam Fritz is Fritz, widow and devisee of Adam Fritz, de- not to be payable until the death of an inceased, and sole executrix under his last valid sister of Barbara Fritz. The jurisdicwill, appeals from an order of the orphans' tion of the orphans' court in this case arises court of Passaic county, made March 14, from the obtaining of the judgment against 1912, requiring the executrix to sell certain the executrix, Catherine Fritz. real estate to pay the judgment of the peti

(2) The issuing of execution which retioners therein. The petition sets forth that mains unsatisfied "for want of personal eson June 23, 1910, Minnie E. Dodd, to and tate to be levied on and sold." for the use of Barbara Thomas, recovered a (3) That there is real estate. judgment against the executrix of Adam (4) The neglect of the executrix, after noFritz, in the Passaic county circuit court, tice to sell said lands. for the sum of $753.92; that execution was The testimony taken before me shows that issued thereon and returned wholly unsatis- the estate of Peter Fritz, deceased, of which fied for want of personal estate to be levied Barbara Thomas is the surviving executrix, on and sold; that Adam Fritz died seised is indebted to the estate of Adam Fritz, deof certain real estate therein described; that ceased, in the sum of $1,859.99 on a promissory

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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note, dated October 16, 1908, payable 30 days, and sale, except in certain specified cases, after date, which was given by the executors amongst which promissory notes are not infor moneys loaned and advanced by Adam cluded. Fritz to the estate of Peter Fritz, and which I am therefore well satisfied that there was used to buy out the dower right of the was no error in the decree of the court bewidow of Peter Fritz, and also to pay taxes low, so far as the promissory note was conand insurance and to make necessary re- cerned. pairs to maintain and keep the buildings on [4, 5] In regard to the distributive share the property of Peter Fritz in a tenantable of the estate of Peter Fritz to which Adam condition, to prevent the estate from waste, Fritz would be entitled I fail to see any reaand the money so advanced is evidenced by son for delaying the collection of the judgthis note; that under the will of Peter Fritz ment. A judgment creditor can sell personthe whole estate is devised to the executors alty or realty at his option on execution. He therein named, to be by them distributed as is the one the law is particularly interested therein mentioned; that it also gave the ex- in seeing made whole. However, when the ecutors full power to sell and convey the debtor dies and his estate is sued, his perreal estate; that the said Adam Fritz was sonalty becomes liable first of all, and his also a devisee and legatee under said will; realty only secondarily. The law still prithat the effect of the said will of Peter marily looks after the judgment creditor. Fritz, in devising the property to the execu- The protection of the heir is only a secondary tors for distribution, was practically to con- matter. The heir may give bonds to prevent vert his property so that it might be treated the sale of the real estate if he wishes to do as if it were personal estate; that the said so, and thus prevent a forced sale of the Barbara Thomas was requested, as surviving realty. Therefore I must assume that, as executrix of the said Peter Fritz, deceased, the orphans' court act clearly states, if there to file her account and proceed to settle the is not sufficient personalty to pay the judgestate and raise the necessary moneys to ment, the realty (or so much thereof as may pay this note of $1,859.99 due to the estate be necessary) shall be sold, that must be the of Adam Fritz, and to pay to her the amount order, as the orphans' court is only a statuof the interest of Adam Fritz in the estate tory court. of Peter Fritz, as would be shown in the The decree shall be affirmed. final settlement, thereby putting into the hands of Catherine Fritz, executrix of Adam Fritz, the money due to the estate of Adam

(86 N. J. L. 141) Fritz from the estate of Peter Fritz, to en- BARNES et al. v. ESSEX COUNTY PARK able her to liquidate the said judgment.

COMMISSION et al. (No. 79.) [1-3] It is the contention of the appellant that both parties being officials of the court, (Court of Errors and Appeals of New Jersey.

Sept. 25, 1914.) and representing different estates, and both being subject to the orders of the court, and 1. HIGHWAYS (8 18*)—PUBLIC HIGHWAYS

STATUTORY PROVISIONS. it being in the interest of both estates that

Under Act Feb. 16, 1870 (P. L. p. 181), litigation should be avoided and expenses authorizing the Essex public road board to lay thereby saved, that it was the duty and the out, construct, improve, and maintain certain right of the orphans' court to grant an or- avenues in the county of Essex, including Park der against Barbara Thomas, as executrix avenue, and providing that such avenues when

constructed shall be deemed and taken to be of Peter Fritz, to proceed and settle the public roads or highways, Park avenue is a pubsame, and to sell the real estate and there- lic highway. by avoid further litigation.

[Ed. Note.-For other cases, see Highways, It will be noted that the judgment obtain-Cent. Dig. § 25; Dec. Dig. $ 18.*] ed by Barbara Thomas against the estate 2. HIGHWAYS (8 168*)-PARKWAYS-REGULAof her coexecutor was obtained by her in TION OF USE. 'her individual capacity.

Under Act April 22, 1907 (P. L. p. 180) $

1, providing relative to the county park commis“Our statutes confer no authority on the or- sions authorized thereby to be appointed in cerphans' court to try disputed claims, except in tain counties that such board shall have full the case of insolvent estates." Middleton V.

power and authority to pass rules and regulaMiddleton, 35 N. J. Eq. 115, and cases there tions for the protection, regulation, and control cited.

of parks and parkways, and Act March 5, 1895 It (the orphans' court) "being a court created (P. L. p. 175) $ 6, providing that the board shall by statute and invested with special powers and have power, not only to lay out and open roadjurisdiction in derogation of the powers of the ways, parkways, etc., but to establish the grade courts established by the Constitution, it must thereof, etc., and regulate the use thereof, while

be restrained in the exercise of those a park commission may possibly have power to powers and jurisdiction by the words of the prohibit the use of parkways by business ye

Ludlow v. Ludlow, 4 N. J. Law, 189; hicles of such heavy draft as would tend to inTenbrook v. McColm, 10 N. J. Law, 333; Bray jure or destroy the road, it cannot prohibit the v. Neill, 21 N. J. Eq. 343.

use of a parkway by ordinary grocery delivery “Choses in action are subject to execution wagons; the protection of the highway not reonly when made so by statute.” 17 Cyć. 971.

quiring their exclusion therefrom. Our statute concerning execution does not

[Ed. Note.-For other cases, see Highways, make choses in action the subject of levy Cent. Dig. $$ 456, 457; Dec. Dig. $168.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

*

3. HIGHWAYS ($ 165*)-PARKWAYS-REGULA-, powered to pass ordinances (P. L. 1907, p. TION OF USE.

180, $ 1) provides : The Legislature may impair the public

“The said board shall have full power and aueasement in a public highway by prohibiting business traffic thereon, and may delegate such enact, alter, amend and repeal rules and regupower.

lations for the protection, regulation, and con[Ed. Note.-For other cases, see Highways, trol of such parks and parkways.” Dec. Dig. § 165.*]

And in section 6 (P. L. 1895, p. 175): Appeal from Supreme Court.

“That the said board shall have power and Certiorari by Robert Barnes and others authority not only to lay out and open roadagainst the Essex County Park Commission ways, parkways and boulevards, connecting and others, to review the validity of an or- Shall have authority to establish the grade of

parks and open spaces as herein provided, but dinance of such commission. From a judg- such highways, and change and alter the same, ment setting aside the ordinance (88 Atl. to grade, curb, flag, pave and otherwise improve 837), defendants appeal. Affirmed.

the said parkways, roadways and boulevards,

and to regulate the use thereof." Alonzo Church, of Newark, for appellants. The Supreme Court holds that "the power Borden D. Whiting, of Newark, for appellees. to regulate and control is not necessarily the

power to prohibit.” To this, as a general WALKER, C. The Essex County Park proposition, we agree, but are unwilling to Commission on January 7, 1913, passed an concede that the statute, under which the ordinance excluding from the parkway ordinance in question was passed, is not known as Park avenue in Essex county "om- broad enough to permit of prohibiting the use nibuses, express wagons, carts or other ve- of the avenue by heavy business vehicular hicles carrying or ordinarily used to carry traffic. merchandise, goods, tools, or rubbish, how [3] In the opinion of the Supreme Court it ever propelled,

except as it may is stated that the Legislature may impair be necessary to carry supplies to or from the public easement in a public highway by residences on either side of the avenue, or in prohibiting business traffic thereon, and that case of buildings being erected fronting on such power may be delegated. And this is said avenue, when it shall be lawful to carry plainly the law. building materials thereto.

The

Now, the right of the Legislature to impair prosecutors, respondents, engaged in the the public easement in a public highway by grocery business and having a store on Park prohibiting vehicular business traffic thereavenue (the one in question) with customers on is conceded, and therefore the question located, some of them on the avenue, and whether the park commission may prohibit more elsewhere, to whom they delivered vehicular traffic upon this particular highgoods by means of ordinary grocery delivery way depends upon whether or not the terms wagons, of which they run six in number, of the statute, under which it acts, are broad constantly using the avenue for delivery enough to include that power. If under the purposes, obtained a certiorari to review the legislative authorization to enact rules for validity of the ordinance. The Supreme protecting, regulating and controlling the Court, after hearing, set the ordinance aside, highway, bụsiness vehicles may be prohibited and the respondents appealed.

the use of the parkway, then it has such pow[1] We agree with the Supreme Court that er, otherwise not. Of course the commisPark avenue, laid out under authority of the sion has not the power to prohibit all traffic; act of the Legislature (P. L. 1870, p. 181), but may it not for the protection of highis a public highway. This is so by the ex- ways make a regulation that business vepress language of that statute, which enacts hicles of such heavy draft as would tend to that the avenues, when constructed by the injure and destroy the road shall not use the board, "shall be deemed and taken to be pub- highway, save, perhaps, under exceptional lic roads or highways.” It is true too that circumstances? We think this question is at Park avenue has been used as a public road least debatable, and that therefore it should and highway without restriction until re- not be foreclosed. stricted use was attempted to be imposed Because forbidding the use of Park avenue upon it by the ordinance under considera- by grocery delivery wagons, such as are tion.

owned and used by the prosecutors, is not [2] The Supreme Court in its opinion says necessary for that highway's protection, the that if the public enjoyment of the avenue ordinance under consideration prohibiting is now to be impaired, it can only be because such use is unreasonable. Protection of the the Legislature has passed some act under highway in question does not require their which power to that end has been clearly exclusion therefrom. granted and expressed, and that this has The judgment of the Supreme Court setnot been done.

ting the ordinance aside will therefore be The act under which the commission is em- affirmed.

*For other cases see same topic and section NUMBFR in Dec. Nig. & Am. Dig. Key-No. Series & Rep'r Indexes

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