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2. The laying of a steam railway longitud- settled in this state against the contention inally in a street, unless by authority of a leg- of the defendants that it would seem to be islative grant, express or implied, will be regarded as such an exclusive and wrongful ap

now too late to question it. In 1858 a suit propriation of that part of the street to a of ejectment was brought by the owner of purpose foreign to the easement as to sustain the fee in a turnpike road, which carried such action of ejectment by the abutting owner against the company.

with it the public easement of the highway, (Syllabus by the Court.)

against a defendant who was the tenant of a

tollhouse built upon part of the highway. Error to Supreme Court.

Other questions were involved, but Chief Actions by Albert Bork and wife against

Justice Green, in delivering the opinion of the United New Jersey Railroad & Canal

the Supreme Court, said: "It is admitted Company and others and by George Rath

that ejectment will lie by the owner of the acker and Philip Wilson against the same

soil for a part of the highway illegally apdefendants. Judgments for plaintiffs, and

propriated by a third party to his own use. defendants bring error. Affirmed.

So the law is settled." The case went to this J. H. Gaskill, for plaintiffs in error. F. court afterwards, and there was a reversal, D. Weaver, for defendants in error.

but no opinion was filed. No question was

raised, however, as to the pi riety of the HENDRICKSON, J. This writ brings up form of action, and the ejectment suit prefor review a judgment of the Supreme Court vailed. See State v. Laverack, 34 N. J. Law, entered upon a postea from the Camden cir- 201; Burnet v. Crane, 56 N. J. Law, 285, 28 cuit. The action is ejectment, and was Atl. 591, 44 Am. St. Rep. 395. In the latter brought by the plaintiffs, abutting owners case this court held that ejectment was an on that part of Front street, in the city of appropriate remedy for the owner of the fee Camden, between Clinton street and Kaighns against one who, having a right of way over avenue, in order to secure the removal of the the locus in quo, extended his fence and took track and roadbed of the defendants, laid exclusive possession thereof. In French v. down by them in front of plaintiffs' prem- Robb, 67 N. J. Law, 260, 51 Atl. 509, 57 L. ises for steam railway purposes. The use of R. A. 956, 91 Am. St. Rep. 433, the abutting the track was limited to the operation of owner brought ejectment, to remove an elecfreight cars thereon. A verdict for the plain- tric light pole in the public street, used for tiffs of six cents damages was directed by private lighting. This court held in that case the learned trial judge. A request of the de- that the owner of the soil in a street may fendants for an instruction to the jury that maintain ejectment against any person no recovery could be bad for the premises wrongfully taking or claiming exclusive posdescribed in the declaration was refused. session of the same. This doctrine is supTo these rulings exceptions were taken by ported by the great weight of authority elsethe defendants and sealed, and error has where. It was fully sustained in the early been duly assigned thereon.

English case of Goodtitle v. Alker, 1 BurThe premises embraced in the suit was

One of the questions was wheththe strip of land between the center line of er an ejectment will lie by the owner of the the street and the plaintiff's property line, soil for land which is subject to passage over containing the track and roadbed of the de- it as a King's highway, and the opinion refendants, having a length of about 37 feet cited that 1 Ro. Abr. 392, letter “b," pl. 1, and a width of 242 feet from the center line, 2, is express “that the King has nothing but subject to the public easement to and over the passage for himself and his people, but said land.

the freehold and all the profits belong to the The first ground urged in support of these owner of the soil.

Lord Mansfield, assignments of error is that ejectment will speaking for the court, said, among other not lie to recover possession of a portion of things: “There is no reason why the owner a public street; actual possession being in- should not have a right to all remedies for consistent with the public easement, and the freehold, subject still, indeed, to the constituting a nuisance, which would render servitude or easement." The legal writers the plaintiffs liable to indictment. The de- and the judicial decisions are found to be fendants cite as authority for this doctrine generally in accord with the doctrine here Cincinnati v. White, 6 Pet. 431, 8 L, Ed. 452; stated. In Newell on Ejectment (1892) p. 31, Stiles v. Curtis, 4 Day, 328. But the author- the rule is stated thus: “It is a well-settled ity of the former case would be more persua- rule of law that the owner of land subject to sive if the point here referred to and there an easement, servitude, or public use may rediscussed had been necessary to the decision. cover the possession of land in an action of For it will be remembered that the case was ejectment against a person wrongfully apdetermined against the plaintiff in his suit propriating the same to a purpose wholly forto recover a plot of ground contained in what eign to the easement or servitude. The rule was known as a "city.common," on the applies to the public highways and the like, ground that it had been dedicated to public but in the action the land is recovered subuse by a previous grantor in the plaintiff's ject to the easement or servitude.” The rule chain of title. But the law upon the sub- is similarly stated in 10 Am. & Eng. Enc. of ject now under discussion has so long been Law (2d Ed.) 473, and the cases in support

row, 143.

of the doctrine are fully collated there and the lien arises at the moment that the claims in 17 Cent. Dig. 1978.

are filed, and not when the labor and material

are furnisbed. It is further contended by the plaintiffs in

2. Under Bankr. Act July 1, 1898, c. 541, $ 70a, error that, granting the doctrine to be as

30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), prostated, the occupancy of the street in this viding that title to the property of the bankrupt case was not exclusive or inconsistent with

vests in the trustee as of the date of the ad

judication, where a voluntary petition was filed the public use, according to the meaning of

by a contractor for a municipal improvement, the rule; that in fact the space between the and the adjudication made the same day, the rails was planked so as to admit the use of

sum due the contractor from the municipality

was in custodia legis, and laborers and mathe highway by the public, except as to the

terialmen could not afterwards create a lien small strip in the center of the street when

on the same by filing notice of claims with the the cars were actually running. But the municipality in compliance with Act March answer to this is that such a use is an ad

30, 1892 (2 Gen. St. p. 2078). ditional burden to the highway, and, unless Separate suits by Henry S. Garretson and supported by legislative authority, it does others against Willard P. Clark and others, wrongfully appropriate a portion of the high- and by John H. Harris against Henry C. way to a purpose foreign to the easement. Garretson and others. Decree advised. In Burlington v. Pennsylvania R. Co., 56 N.

H. C. Suydam, for complainants Henry S. J. Eq. 259, 38 Atl. 849, affirmed in 58 N. J.

Garretson and others. Theodore Strong, for Eq. 547, 43 Atl. 700, it was declared that a

complainant John H. Harris. J. K. Rice, for steam railroad laid longitudinally in a street

defendant Willard P. Clark. McDermott & is regarded as practically an exclusive ap

Fisk and Walter L McDermott, for defendpropriation of that part of the street which

ant Rockland Lake Trap Rock Co. Theodore it occupies to a use inconsistent with the

Strong, for defendant John H. Harris. Dulegitimate use of the street by the public.

gan & Reger, for defendant Nelson Y. DunAnd in Louisville & St. L. & T. Ry. Co. v.

gan. Peter F. Daly, for defendant Conrad Liebfried, 92 Ky. 407, 17 S. W. 870, it was Seebold. held that, in a suit by the abutting owner, ejectment would lie against a railroad com- REED, V. C. These bills were filed under pany appropriating the same to its perma- the provisions of an act approved March 30, nent use without legislative grant, express 1892, to be found in P. L. 1892, p. 369 (2 Gen. or implied.

St. p. 2078). The act provides that a person It is not contended that there was any who, as laborer, mechanic, merchant, or traderror in the refusal to admit in evidence the er, shall, in conformity with the terms of a city ordinance empowering the defendants to contract for any public improvement, made construct and operate the branch railroad in between any person or municipality, furnish question. Such an ordinance would not be material or perform labor toward the peradmissible in the absence of any legislative formance or completion of such contract, on grant, or support the ordinance.

complying with the second section of the act, Under the evidence the plaintiff was en- shall have a lien, for the value of such titled to a direction of the verdict in his fa. labor or materials, upon the moneys due or vor, and hence there was no error in the rul- to grow due under said contract. The facts ings of the trial judge.

are these: The firm of Van Duersen & Oliver The same result is reached in, No. 20, on August 6, 1902, contracted with the board George Rathacker v. Same Defendants, and of chosen freeholders of Middlesex county in No. 21, Philip Wilson v. Same; the three to macadamize a road in that county. About cases, involving the same questions, having January 10, 1903, and before the contract been argued together.

was completely executed, that firm was disThe judgment in each of these cases is af. solved; and, by the terms of dissolution, firmed, with costs.

Mr. Oliver received all the assets and assumed all the liabilities of the firm. Oliver continued the work under the contract. On

July 20, 1903, Oliver filed a petition in bankGARRETSON et al. v. CLARK et al.

ruptcy, and was on that date adjudged a HARRIS v. GARRETSON et al.

bankrupt; and subsequently Willard P. Clark (Court of Chancery of New Jersey. Feb. 27, was elected the trustee in bankruptcy, and, 1904.)

by permission of the federal court, was made MUNICIPAL IMPROVEMENTS-LIEN FOR LABOR a party to these suits. Mr. Clark, as trustee, AND MATERIAL-TIME OF ACCRUAL-BANK

completed the execution of the contract. The RUPTCY--PROPERTY IN CUSTODIA LEGISAFTER-ACQUIRED LIENS.

money due from the county upon the con1. Under Act March 30, 1892 (P. L. 1892, p. tract was paid to the trustee, with the ex369; 2 Gen. St. p. 2078), giving persons furnish

ception of 5 per cent. of the contract price, ing labor or material under a contract for a public improvement a lien on the moneys due

which, by the terms of the contract, was reor to grow due for the value of the labor or tained. There was due on the contract $2,material furnished, on filing a notice of the 551.74. The 5 per cent. retained amounted amount claimed with certain municipal officers,

to $618.60. There was also paid to the trusthe lien to attach from the time of the filing,

tee, on account of work done upon the road, (1 See Mechanics' Liens, vol. 34, Cent. Dig. $ 303. outside of the requirements of the contract,

$265.17. Six persons claimed liens upon the of notice, after the filing of the petition in money now in the hands of the collector and bankruptcy, and, of course, after the adjudi. trustee. Two of the notices of claims were cation in bankruptcy In re Herman Roeber, filed five days before the adjudication in 9 Am. Bankr. R. 303, 121 Fed. 449, 57 C. C. bankruptcy, and the other four were filed, re- A. 565. So, in the case of an assignment for spectively, July 22 and Au 5, 10, and 15, the benefit of creditors, where notices were 1903.

given under the Illinois statute subsequent It seems entirely clear that the liens of to the assignment, they were held to constithe respective claimants arose at the mo- tute no lien upon the property assigned. ment when the claims were filed. The sec- I am constrained to the conclusion, there. ond section of the act provides that the claim- fore, that the only claimants who are entiant may file with certain officers of the tled to lien are John H. Harris, whose claim municipality with which the contract is made was filed on July 15th, and the Rockland notices stating the amount claimed, and cer- Lake Trap Rock Company, whose claim was tain other matters designated in the act. also filed on July 15th. A decree will be Section 3 provides that the officers shall en- advised in conformity with these conclusions. ter in a lienbook the amount of the claim and the date of filing. Section 5 provides that the lien shall attach from the time of

(66 N. J. E. 90) the filing thereof, to the extent of the liabil

LAWSON V. DUNN. ity of the contractor for the claim preferred (Court of Chancery of New Jersey. Feb. 26, upon any funds which may be due or grow

1904.) due to said contractor from said municipality PARTNERSHIP-INSOLVENCY-RECEIVERSHIP under the contract against which the lien

DISTRIBUTION OF ASSETS-PRIORITY

OF CLAIMS-SECURITIES. is filed. The proceeding is somewhat similar

1. In the settlement of an insolvent partner to the demand and notice under the third ship, claims of individual partners cannot be section of our mechanics' lien act, and also recognized until other claimants are paid in to the provisions of the New York act pro

full.

2. Where a member of an insolvent partnerviding that a subcontractor shall have a lien

ship conveyed property to his wife which was for the value or agreed price of labor and rented to the firm, and the conveyance was in materials furnished, from the time of filing a

fraud of creditors, the wife was a mere trustee notice of such lien. Under both those pro

in equity, the title, in respect to his creditors, visions the lien attaches at the moment of

remaining in him, and she was not entitled to

payment of rent while firm debts remained unthe filling of the notice, and does not relate paid. to the time when the labor or materials

3. Where a creditor of a firm who had ob

tained judgment on his claim, obtained a dewere furnished. Under our original mechan

cree against the wife of one of the partners ics' lien act, until demand and notice by a setting aside as fraudulent a deed to her of her laborer or materialman was given, the con- husband's property under which decree the tractor could deal with the amount due him

property was sold, but not for a sum sufficient

to satisfy the claim, on insolvency of the firm in any way he chose. The present act, of and distribution of its assets in the hands of a course, expressly limits his ability to do so, receiver, such creditor was entitled to share ratbut no such limitation is contained in the ably on the full amount of his claim, without

deducting the amount of the sale, unless the act under which the present claims were

dividends would amount to more than the balfiled. So, under the New York act, if the ance due him after applying the sum received contractor transfers his claim before notice from the sale. of the lien is given, the latter is ineffective

Proceedings by Charles S. Lawson against (Stevens v. Ogden, 130 N. Y. 182, 29 N. E.

Thomas Dunn for settlement of partnership 229), for the filing of the notice originates affairs, in which Mary A. Dunn and John J. the lien (McCorkle v. Herrman, 117 N. Y. Thompson present claims against the part297, 22 N. E. 948). Now, under the bank

nership for a sharing in the distribution of asruptcy act, the title to the property in the sets in the hands of the receiver. On a rule bankrupt vests in the trustee as of the date

to show cause why the report of the receiver when the former was adjudicated a bank- should not be approved, decree rejecting the rupt. Section 70a of the bankruptcy act (Act claim of Mary A. Dunn, and approving tbat July 1, 1898, c. 541, 30 Stat. 565 (U. S. Comp. of John J. Thompson. St. 1901, p. 3451]). Inasmuch as the petition See 49 Atl. 1087. in bankruptcy and the order adjudging Oliver

W. T. Hilliard, for the receiver. Chas. a bankrupt-it being a voluntary petition

Mecum, for Ivans, Deats & Magee and others. were made on the same day, no question can

1. O. Acton, for Jno. J. Thompson, adminisarise as to the effect of a notice given be

trator. Jno. W. Acton, for Mary A. Dunn. tween the filing of a petition and an order of adjudication in bankruptcy.

REED, V. C. This is the return day of a It is clear, therefore, that after July 20, 1903, the debt due from the municipal cor

rule to show cause why the account of a

receiver of a partnership should not be apporation to Oliver was in custodia legis, and

proved and distribution ordered.

The acno lien upon it could thereafter be created.

count taken by the master included all the A trustee in bankruptcy takes the fund due the contractor free from any lien, by reason 91 See Partnership, vol. 38, Cent. Dig. $ 318.

assets of the firm and all claims against the if a creditor holds security given him by firm, not only the claims of third parties, but the bankrupt, he must surrender his security of the partners as well. As there is not for the benefit of all the creditors, if he asks enough assets to pay all these claims, the for dividends upon bis entire claim. He can question now supervenes, in what manner is give credit for his security, and claim for the the money in the hands of the receiver to be balance, or give up his security altogether disbursed?

and prove for his whole debt. Lindley on It is quite clear that the claims of the Part. $ 714. This rule is only applicable partners cannot be recognized until the other where the debt is payable out of the estate claimants are paid in full. In respect of the to which the security belongs. If the security claims of the other claimants, the first ques- is given by some one other than the bank. tion propounded is whether the claim of Mary rupt, the creditor can hold his security and A, Dunn should share in the distribution be- prove for his whole debt. And partners un. fore all the other valid claims, other than der this rule are regarded as parties distinct those of the partners, are paid in full. Her from the firm. Therefore, if one partner claim is for the rent of the store in which the mortgage his own property for a debt of the firm carried on its business. The title to firm, the creditor is allowed to prove for his this store, when it was originally used for whole debt against the firm, and retain the this business, was in Thomas Dunn, the mortgage security given by the partner. Es husband of Mary A. Dunn. In April, 1894, he parte Caldicott, 25 Ch. Div. 716; Lindlay on conveyed this store to Mary A. Dunn. In a Part. 8 716. The distinction is apparent from suit brought against Mary A. Dunn by John a comparison of the case of Ex parte CaldiJ. Thompson, administrator of Joseph B. cott, supra, and the case of Ex parte West Thompson, a claimant against the firm as. Riding Banking Co., 19 Ch. Div. 105, in which sets who obtained a judgment for the amount a creditor held a mortgage upon the properof his claim, to set the deed from Dunn to ty of a partner who himself became bankhis wife aside as fraudulent, a decree was rupt, and it was held that the creditor could made in the suit in accordance with the not prove without giving up his security. prayer of the bill. I think that the testimony This rule respecting securities is the foundataken before the master shows that the con- tion of the rule that where the claimant is veyance was made in fraud of all creditors. the creditor, not only of the bankrupt, but This left her a mere trustee in equity, the also of another person, he may prove against real title, in respect of the husband's credit- the estate of the former, and yet sue the ors, being in him. As against the receiver, latter, and get from him what he can. so far as he represents those creditors, I parte Schofield, 12 Ch. Div. 337. A creditor do not see how she can claim rent for prop- of a firm, one member of which has become a erty which was her husband's, any more than bankrupt, can prove against the estate of the her husband could claim rent to be paid out bankrupt and sue the other partners. Ex of the firm assets while firm debts remain un- parte Isaacs, 6 Ch, Div. 58; Lindley on Part. paid. I see no reason why these rents could § 718. Under the rules recognized in the not be reached by any judgment creditor of administration of bankrupt estates, it is quite the husband as equitable assets belonging clear that the firm and the partners are to to him. While the receiver could not recover be regarded as distinct parties, and that, them if they were due from a tenant other inasmuch as the creditor would have had the than the firm (Hiles v. Dunn, 61 N. J. Eq. right to hold a security given him by a part391, 48 Atl. 315), yet, being a claim against ner, so he has the right to sue a partner for the firm, it is a claim in equity by the bus- a firm debt, and also to prove for his entire band, who is a partner. I am of the opinion debt against the insolvent firm. Nor am I that her claim is not entitled to recognition aware that this doctrine has been questioned in making distribution, unless there remains in the distribution of insolvent estates by rea surplus after paying firm creditors.

ceivers or assignees. There is a contrariety The next question propounded is whether of view in respect to whether, where the the John J. Thompson, administrator, etc., creditor holds collaterals of the insolvent, he already mentioned, is entitled to share rata- can prove for the whole amount of his debt, bly upon the full amount of his claim of $3,- | but, so far as I know, there is no dispute 502.75 and his other claim of $619.20. As al- when the collateral is that of a person other ready observed, he obtained a decree against than the insolvent. In the case of State Mrs. Dunn, setting aside the deed to her as Bank v. Receivers of Bank, 3 N. J. Eq. 266, a fraud upon his intestate as her husband's cited as opposed to the right to prove for the creditor. The property was sold by virtue full amount, the pledge consisted of drafts of this decree, and there remains as the pro- which belonged to the insolvent New Brunsceeds of such sale the sum of $2,118.19. The wick Bank, and which had been indorsed query is whether this amount should be de- over to the State Bank as collateral security. ducted from the amount of the claims, and It was held by Chancellor Vroom that the a dividend declared for the remainder, or amount of the collateral should first be de whether Thompson is entitled to a dividend ducted from the claim of the. State Bank. upon the entire amount of his claims. The In all the cases cited by the learned chancel. rule applied by the bankruptcy courts is that, | lor, the collaterals were given by the bank.

rupt. The rule in respect to payments received from others than the insolvent, as applied to the relations of creditor, partner, and firm, is summed up by Mr. Bates thus: “Both in England and here, if a joint creditor has also separate security upon the property of one of the partners, or a separate creditor had also security given by the firm upon joint property, such creditor could prove his debt, and also realize upon his security.” 2 Bates on Part. $ 842. There is no question of marshaling involved. Thompson's right to the money raised by sale of Dunn's property is complete and unquestioned. If Dunn has individual creditors, they cannot now attack Thompson's right to this money. If the amount had been sufficient to pay Thompson's claim against the firm, then the individual creditors, if any, could perhaps have successfully asked to be subrogated to Thompson's right to prove against the firm. My conclusion is that Thompson should receive dividends upon his whole claim, unless the dividends reach an amount more than the remainder due bim, after applying the sum received from the Dunn property.

pecuniary injury to the widow and next of kin of Oscar J. Cameron, deceased. There was a verdict for the plaintiff for $6,510. Application was made to the trial justice, within six days, for a rule to show cause why a new trial should not be granted, which was denied. The application is now renewed at bar.

We have given careful consideration to this case, and the evidence seems to have justified the conclusions of the jury upon the questions submitted to them in finding negligence in the defendant company's motorman in running upon the deceased under the circumstances detailed. The car was moving at a good speed-some of the witnesses expressing it as "a high or terrific rate of speed”— upon a street where the motorman had a clear view ahead of him for several hundred feet; and the deceased was leading a horse in the highway, the car and the deceased approaching each other from opposite directions. When the car was within a short distance-probably 200 feet-of the deceased, the horse which he was leading became unmanageable, and it must have been evident to the motorman that the cause of the fright of the horse was the oncoming car. It was then the duty of the motorman to put his car umder such control as to be able to stop it, and to take all necessary precautions to that end. The jury have found that he did not do so, and that under the charge of the court he was not exercising that ordinary care and prudence which was required of him. We are unable to see any reason for saying that this conclusion of the jury was not justified. The charge of the court was, if

ling, favorable to the defendant, and it correctly stated the law applicable to this class of cases.

The deceased was 31 years of age, and was earning more than $1,000 per year, and the widow was a woman of 32 and the two children of the deceased were aged 2 and 8 years, respectively. The ver. dict therefore was not excessive.

There appears to be no reason for a rule in this case, and it is refused.

(70 N. J. L. 633) CAMERON V. JERSEY CITY, H. & P. ST.

RY, CO. (Supreme Court of New Jersey, March 2, 1904.) STREET RAILROADS - OPERATION NEGLI

GENCE OF MOTORMAN-RUNNING ONTO PERSON IN STREET-EVIDENCE-SUFFICIENCY DAMAGES FOR DEATH.

1. A car was running at a good speed, some of the witnesses expressing it as “a high or terrific rate," on a street where the motorman had a clear view ahead for several hundred feet, and plaintiff's intestate was leading a horse on the highway approaching the car from the opposite direction, and when the car was within a short distance probably 200 feet-the horse became unmanageable. Held, that it must have been evident to the motorman that the horse's fright was due to the oncoming car, and it was then his duty to put his car under such control as to be able to stop it, and to take necessary precautions to that end, and that it was negligence in him to run into deceased under the circumstances.

2. Deceased was 31 years of age, and was earning $1,000 per year. His widow was 32 years of age, and his two children were 2 and 8 years respectively. Held, that a verdict for $6,540 for his death was not excessive.

Action by Fannie M. Cameron, administratrix of Oscar J. Cameron, deceased, against the Jersey City, Hoboken & Paterson Street Railway Company. There was a verdict for plaintiff, and defendant applied for a rule to show cause why a new trial should not be granted. The application was denied, and is renewed at bar. Rule refused.

Argued February term, 1904, before VAN SYCKEL and FORT, JJ.

Bedle, Edwards & Lawrence, for plaintiff.

(70 N. J. L. 313) COLLIER v. CONSOLIDATED RY., LIGHT.

ING & REFRIGERATING CO. (Court of Errors and Appeals of New Jersey.

Feb. 29, 1904.) CORPORATION-DE FACTO OFFICERS-VALIDI

TY OF ACTS-CONTRACT OF EMPLOYMENT -ACTION FOR BREACH-EVIDENCE-MATERIALITY.

1. A resolution of a de facto board of direct. ors of a corporation providing for the empoy. ment of a sales agent of the corporation cannot be annulled by the action of the president alone.

2. An offer to prove that a resolution of a board of directors of a corporation providing for the employment of a sales agent was passed by a dummy board having no real interest in the corporation, that the president only had the power to employ, and that he immediately notified the agent employed that he was not employed by the company, is not an offer to prove

PER CURIAM. This action was tried at the Bergen county circuit on the 9th day of December, 1903. The suit was to recover for

57 A.-27

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