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We think there was error in this construction GARRISON, V. C. It is not necessary to of the contract in question. Our view is that advert to the issues raised and decided in the provision first named applied to this con this suit. The only question to be determintract, and that the other provisions apply ed is one of costs. The suit is one to foreto subcontractors only, declaring their obliga close a mortgage held by the complainant, tion to the contractor and to the owner. And and the solicitor of the complainant causby fair intendment we think the phrase in ed, not only the customary searches to be the subcontractor notice, "should the owners made from the date of the mortgage, but desire any additional work executed,” im. also searched the title anterior to the date ports that the desire of the owners in this of the mortgage for the purpose of disclosing case should be evidenced by a resolution of any defects in or liens or incumbrances therecouncil as provided in the main portion of on. His purpose in doing this was so that the contract.

he could insert in the notice of sale and in But the plaintiff contends also that the the conditions thereof a reasonable descripverdict should be sustained on the ground of tion of the defects in the title and the liens ratification ; that, as the evidence shows that or incumbrances thereon, so that the purthe city council by paying the bill of the ar chaser at the sale could not be relieved of his chitect for his 5 per cent. commission, the bid on account of the existence of such decost of the work which included the item of fects, liens, or incumbrances. The insertion extras, this amounts to a ratification of the in the notice of sale, and in the conditions extra work, or at least was evidence from thereof, of the existence of the defects in the which a jury could infer ratification. With title and of the liens and incumbrances thereout expressing any opinion upon the merits on has the effect of preventing the purchaser of this question, it is proper to say that it is from obtaining relief from his bid by force not now before us for the reason that the of the statute (P. L. 1906, p. 269). trial judge expressly charged the jury to the The solicitor of the complainant requested contrary of this contention, and we cannot me to certify, in pursuance of rule 113a, that sustain the verdict on a legal theory directly in my opinion the certificates of search pre opposed to the judge's instructions, for that sented by him were necessary for the proper would deprive the city of its right of review. foreclosure of his mortgage, upon which cer

The result is that the rule to show cause tificate he could obtain the taxation of the must be made absolute, unless the plaintiff same in his costs. I will certify that the will consent to remit $307.80 from the amount expense incurred in procuring searches showof the verdict. If the plaintiff will so remit, ing the state of the title since the date of the rule will be discharged. In any event the the mortgage were necessary for the proper city is entitled to costs upon this rule. foreclosure thereof, and, therefore, under rule

113a and the statute (P. L. 1902, p. 540) are (73 N. J. Eq. 228)

properly taxable in favor of the complainant.

I cannot certify that the expenses incurred ARMSTRONG v. FISHER et al.

for searching the title anterior to the date (Court of Chancery of New Jersey. May 25, 1907.)

of the mortgage are taxable. MORTGAGES

The complainant contends that these FORECLOSURE—Costs—SEARCHING TITLE.

search fees should be included, because they Under P. L. 1906, p. 269, providing that were rendered necessary by the statute above a purchaser of real estate at foreclosure sale,

referred to (P. L. 1906, p. 269). I do not etc., shall be relieved from his bid if before delivery of the deed he satisfy the court of the

concur in this view. In my view, that statute existence of any substantial defect in or cloud does not cast any duty upon the complainon the title which would render the title un. ant, or upon any of the parties in the suit, marketable, or of the existence of any lien or

but does extend to each of them a privilege. incumbrance thereon, unless a reasonable description of the estate or interest to be sold and

Before the enactment of this suit a purchaser of the defects in the title and liens or incum at a judicial sale in New Jersey took such brances thereon, with the approximate amount title as the proceedings showed, and could thereof, be inserted in the notices and advertise

not claim to be relieved because of the existments of sale and in the conditions of sale, expenses incurred in procuring searches show. ence of prior incumbrances or of defects in ing the state of a title since the date of a the title. The effect of this statute is to mortgage were necessary for the proper foreclo

prevent the bidder or purchaser from being sure thereof, and taxable under rule 113a in favor of the party foreclosing the mortgage,

relieved, if the defects in the title and the though expenses incurred in searching the title liens and incumbrances thereon are brought anterior to the date of the mortgage were not to his notice before the sale. taxable.

In my view, therefore, any one who desires [Ed. Note.-For cases in point, see Cent. Dig.

to bring these things to the notice of the invol. 35, Mortgages, § 1662.)

tending purchasers may do so, but it is not Bill by Roland D. Armstrong against Agnes

the duty of any one to do so. A mortgage Fisher and others. Heard on bill, answer,

may be foreclosed, and the equity of redempreplication, and proofs. Decree for defend

tion disposed of, and the title which a sale ants in part.

under the mortgage is capable of conveying Condict, Condict & Boardman, for com be conveyed, without necessarily searching plainant. Tennant & Haight, for defendant back of the date of the mortgage. If it be to

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the interest of the complainant to have the

Although they do not excuse a failsale under such conditions that the purchaser ure on the part of the traveler either to cannot be relieved of his bid because of de look or listen, yet open gates under such cirfects, etc., then the complainant may serve cumstances are clearly evidence of the neg. his own interest by searching for defects, ligence of the agents of the defendant comliens, and incumbrances, and may cause no pany, and, whether the plaintiff exercised tice of the same to be given. In like man reasonable care and prudence, or that care her, in my view, any of the other parties may and prudence which was required of him unavail themselves of the privilege extended by der the circumstances surrounding him, was this statute.

a question for the jury. So, in any view, I conclude, therefore, that costs for such the court rightly refused to nonsuit. searching may not be taxed in favor of any The other ground urged for a new trial is party without legislative sanction; and I do the suggestion that the damages were excess. not find any present legislation sanctioning ive. The verdict was for $18,000. We think the same.

the damages were excessive. The plaintiff was seriously injured undoubtedly, but

whether the serious character of the injury, (75 N. J. L. 75)

which still exists, is to obtain for all the SHAFER v. LEHIGH VALLEY R. CO. OP

life of the plaintiff, is not clear. The earnNEW JERSEY.

ing capacity of the plaintiff was much more (Supreme Court of New Jersey. June 17, 1907.) than capitalized by the verdict. RAILROADS – ACCIDENT AT CROSSING - OPEN

This disposition will be made of this case: GATES.

The rule to show cause will be discharged. While open gates are an invitation to

unless the plaintiff will consent to remit all cross, they do not excuse a traveler approach- damages recovered in excess of $10,000, and, ing a railway crossing from looking or listening, or both, where either would be effective.

upon the further condition that, if the plain(Ed. Note.--For cases in point, see Cent. Dig.

tiff does not consent to thus remit and to vol. 41, Railroads, § 1072.)

this reduction, the defendant may have a (Syllabus by the Court.).

new trial upon the condition that it concede

liability in the case and consent to go to trial Action by Oscar W. Sbafer against the

upon the question of the quantum of damLehigh Valley Railroad Company. Verdict

ages only. for plaintiff. Rule to show cause discharged, unless plaintif remits portion of damages recovered.

(75 N. J. L. 172) Argued February term, 1907, before FORT, STONE V. NEW JERSEY & H. R. RY. & HENDRICKSON, and PITNEY, JJ.

FERRY CO. H. B. Herr and Smith & Gray, for the (Supreme Court of New Jersey. June 10, rule. William C. Gebhard, opposed.

1907.)

INSURANCE-MUTUAL ASSESSMENT COMPANYFORT, J. In this case but two questions

INSOLVENCY-SET-OFF OF MEMBER.

A member of an insolvent mutual asare argued on the brief as grounds for a

sessment insurance company cannot set off 8 new trial; the first being the refusal of the debt due him for a loss under a policy against court to nonsuit. We think that this refusal assessments due from him to the company to was right.

pay losses, even though the company is a

foreign corporation, and the suit to recover At the point where the plaintiff was in

the assessments is brought by a foreign re jured there were seven tracks at grade. On ceiver. either side of the roadway there were gates. (Syllabus by the Court.) Those gates were operated by a man in the

Action by Theodore W. Stone, receiver, tower. The plaintiff was a baker, and on the

against the New Jersey & Hudson River morning in question was crossing the tracks

Railway & Ferry Company. Motion to strike in his baker wagon, and as he approached

out notice of set-off granted. the tracks the gates were up. Three of the

Argued February term, 1907, before GARtracks at the side of the railway from which

RISON, SWAYZE, and TRENCHARD, JJ. the plaintiff approached were sidings. The two tracks on the opposite side of the road.

Linton Satterthwait, for the motion. Ed. way were the main tracks. Upon the sid mund W. Wakelee and Wendell J. Wright, ings there were standing cars to obstruct the opposed. view of the plaintiff from the direction from which the train that hit him came. The SWAYZE, J. The plaintiff is a receiver of train was going rapidly, concededly at the a mutual assessment insurance company of rate of 35 to 40 miles an hour, probably fast Pennsylvania, appointed by a court of that

There were also distracting dangers at state. The action is brought to recover asthe crossing at the time the plaintiff was sessments upon a policy of insurance. The going over, consisting of a drill engine defendant seeks to set off a sum due to it for switching or handling cars but a short dis losses covered by the policy. The question tance away and which the plaintiff was ob raised by the motion is whether there is a serving. Open gates are an invitation to right of set-off.

er.

The right of set-off as against the receiver of an insolvent corporation does not rest upon the statute of set-off, but upon the provision of the corporation act authorizing the receiver to settle debts due the company upon such terms as be sball deem just and beneficial to the corporation, and in case of mutual dealings to allow just set-offs. Receiver v. Paterson Gaslight Co., 23 N. J. Law, 283.

Whether the allowance of such a set-off as is here claimed is just or not depends upon the contractual relations between the insolvent company and the defendant. The contract is found in the defendant's applica; tions and in the policies issued thereon, all of which are in the same terms. By the applications the defendant applies for member. ship and insurance. By the policies, it is entitled to share in dividends declared by the directors of the insolvent association, and, in case the fixed premium rate charged by the association is insufficient to pay losses, becomes liable to pay a pro rata ad. ditional sum to make up the deficiency, not exceeding 5 per centum of its gross traffic receipts.

Under such a contract the relation of the defendant to the association is twofold: It is assured thereby, and hence a possible creditor; it is a member of the association, and hence a quasi partner in the enterprise. The present suit is to enforce the liability of the defendant in the character of member. The set-off is a claim in its character of creditor. The injustice of allowing one member of a mutual insurance company upon the assessment plan to escape liability to contribute to the common fund, and thereby obtain an advantage over his fellow members, all of whom embarked in the same enterprise presumably on equal terms, and of allowing one creditor of an insolvent company to be preferred over other creditors merely by reason of his liability to contribute toward the payment of the losses of all, is manifest. The authorities seem quite unanimous against allowing a set-off in such

One of the early cases is Hillier v. Allegbany Mutual Insurance Co., 3 Pa. 470, 45 Am. Dec. 656. This was followed in Lawrence v. Nelson, 21 N. Y. 158. Although the precise question has never been decided in this state, a somewhat similar question was presented to Chancellor Runyon (Vanatta v. New Jersey Mutual Life Insurance Co., 31 N. J. Eq. 15, 23) with the same result. The New York and Pennsylvania cases above cited have been relied on as authority by the Court of Errors and Appeals. Hannon v. Williams, 34 N. J. Eq. 255, 38 Am. Rep. 378. This was a case where a depositor in a savings bank was refused a set-off of her de posit against her indebtedness. Although her indebtedness to the bank was upon bond and mortgage, this fact was not relied on. The set-off was refused upon the ground that the depositors in a savings bank had a com.

66 A.-68

mon interest in a common fund to which all looked for profit or for indemnity. The case of a mutual assessment insurance company presents an even stronger case against the allowance of a set-off, for the reason that the members are under a contract liability to contribute to the payment of losses, and, unlike depositors in a savings bank, cannot escape with the loss of what they have already paid. Their position is quite like that of stockholders of a corporation whose stock is not fully paid. As to stockholders, it is well settled that there is no right of set-off in such cases. Ex parte Grissell, L. R. 1 Ch. 528, 35 L. J. Eq. 752; Sawyer y. Hoag, 17 Wall. (U. S.) 610, 21 L. Ed. 731; Williams v. Traphagen, 38 N. J. Eq. 57.

It is urged, however, that the present plaintiff is a foreign receiver, and the de fendant a New Jersey corporation. We are unable to see why these facts should be allowed to give the New Jersey creditor an advantage over other creditors. We do not allow a foreign receiver · to exercise bis powers in our jurisdiction to the disadvantage of creditors resident here; but, subject to this restraint, comity requires that he should be acknowledged and aided. Hurd v. Elizabeth, 41 N. J. Law, 1. Where it is necessary our courts will appoint an ancil. lary receiver, but the assets will be so administered that creditors in this state and in the foreign jurisdiction shall fare alike. Irwin v. Granite State Provident Association, 56 N. J. Eq. 244, 33 Atl. 680. Such equality of treatment cannot be secured in this case if the set-off is allowed.

The motion to strike out is granted, with costs.

a case.

(75 N. J. L. 49) CHRISTIE et al. v. BOARD OF CHOSEN FREEHOLDERS OF BERGEN

COUNTY et al. (Supreme Court of New Jersey. June 17,

1907.) 1. COUNTIES - BUILDINGS BONDS - MANDAMUS.

Where a county building committee has been appointed by the chosen freeholders of any county, pursuant to the act of 1901, as amended by the act of 1902 (P. L. 1901, p. 79; P. L. 1902, p. 42), and such committee has incurred obligations for lands or building construction, it is lawful for the chosen free holders to raise the necessary funds to cover such expense by the issuance of bonds as provided by statute, and in default a mandamus will issue so directing. 2. SAME-ERECTION OF COUNTY JAIL.

Under the act of 1901, the building committee, when appointed, have the authority to erect a county jail. 3. SAME-CHANGE OF BUILDING SITE.

The provisions of the act of 1903 (P. L. 1903, p. 47) do not apply to a change of site for the location of county buildings at the county seat, but only to a change of the county, town, or seat itself. (Syllabus by the Court.)

Application on the relation of Walter Christie and others to the board of chosen

freeholders of the county of Bergen and be taken in the name of the freeholders. others. On rule to show cause. Peremptory Among other things, they are authorized to writ ordered.

employ architects and to execute all necesArgued February term, 1907, before FORT, sary contracts and agreements in the name HENDRICKSON, and PITNEY, JJ.

of the freeholders, and to incur "any proper Wendell J. Wright and Edmund W. Wake

and necessary expense in carrying out the lee, for relators. Luther A. Campbell and

provisions of this act," and, by the fourth Peter W. Stagg, for respondents.

section of the act of 1901, as amended by the act of 1902, that it shall be lawful for the

board of chosen freeholders of such county FORT, J. This is an application for a

to issue and sell the bonds of such county mandamus to compel the issuance by the re

corporation for the purpose of raising the spondents of county bonds to meet the cost

money to pay the cost of lands and buildings of the purchase of lands and the erection of

and furnishing the same, according to the public buildings for the county of Bergen. provisions of this act, to an aggregate amount The freeholders of that county heretofore ap

not exceeding 142 per centum of the total aspointed a committee for the purpose of erect sessed value of the real and personal propering public buildings in such county, under

ty in such county. The bonds are to run for the act of 1901, as amended by the act of

40 years and to be sold for not less than par, 1902 (P. L. 1901, p. 79; P. L. 1902, p. 42).

and it is made the duty of the chosen freeThese proceedings were questioned and af

holders to establish a sinking fund to meet firmed in this court and in the Court of Er

the bonds at maturity, and also to enter in rors and Appeals. Gulnac v. Freeholders

the county tax levy a sum sufficient to pay (N. J. Err. & App.) 64 Atl. 998. The con

the interest on the bonds. stitutionality of this act was sustained by

It is argued that the words "it shall be the Court of Appeals. Dickinson v. Hudson Co. Freeholders, 71 N. J. Law, 589, 60 Atl.

lawful,” in the fourth section of the act, are

words of discretion, and not mandatory upon 220. The building commission appointed pur

the board of freeholders as to the issuance of suant to statute have en ed upon the dis

bonds. This view does not commend itself charge of their duties, and have incurred ex.

to our judgment when the history of the statpenses in securing the site and employing experts and for the services of a consulting en

ute is considered. The act provides for a

scheme for the erection of county buildings, gineer, and the like, amounting to several

and authorizes the commission, when aphundred dollars, and they have also made requisition upon the board of freeholders for

pointed pursuant to the statute, to do the

things in relation thereto above enumerated. funds for the purchase of a site which they

To meet these obligations, in order to justify have selected for the erection of the county

the board of freeholders in doing it, the stat. buildings within the town of Hackensack, which is the county seat. The board of free

ute provides that "it shall be lawful" for

the board to issue and sell bonds. Of course, ho ers, a vote of 6 to 18, have refused to

but for this there would be no power in the issue bonds in accordance with the statute,

board of freeholders to issue the bonds. The to provide the necessary funds to meet the requirements of the appointed building com

statute gives the unquestioned power to the mittee. This proceeding is to test the right

county commissioners to incur obligations in of the county commission to require the free

the name of the county of the character menholders to issue the bonds and to provide the

tioned above. To meet these, it is the duty

of the freeholders to provide the funds, and necessary funds. No technical points are made by counsel,

the statute points out the method in which it but the broad claim is made by the respond

shall be lawful for them to do so. There is ents that the matter of furnishing the funds

no discretion in the board of freeholders requisite for the county building which the

with respect to this matter. The duty is county building commission proposes to con

cast upon them to provide the funds to meet struct is discretionary with the board of

the engagements which the statute authorfreeholders, and that, if they refuse to fur

izes the commission to incur. Any other nish the funds, no buildings can be erected.

construction of this act would lead to this We think otherwise. After the statutory

anomaly: That the county commission could proceedings have been taken for the selection

incur expenses which there would be no way of the county commission, and the commis

to pay, unless the duty upon the board of sion has been appointed, the power of the freeholders to meet the obligations thus inchosen freeholders under the statute is end

curred was a mandatory one. ed, and all duties then devolve upon the Another point was made. It is conceded county commission. They are given power

that the money in this case is desired to purto acquire by purchase or condemnation lands chase land in the town of Hackensack, which suitable for the erection of the necessary

is the county seat of Bergen county, at a buildings, to be used for the courts and coun. different location, in that town, from that ty officers, and for the transaction of the upon which the present county buildings are public business of the county and to furnish situated. The record shows the reason for the same ready for occupancy and use by the taking of this course by the commission such courts and public officers. Title is to in a full and satisfactory report found there

p. 17), is not special legislation as to cities, and hence is not in conflict with out state Constitution. (Syllabus by the Court.)

Certiorari by John G. Wendel against the board of education of the city of Hoboken to review an order appointing condemnation commissioners. Affirmed.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

Collins & Corbin, for prosecutor. James F. Minturn, for defendant,

in. The contention is that this is a change of location of the county buildings within the provisions of the act of 1903 authorizing the change of the location of the county buildings for the use of the courts and public officers of the county, and acquiring lands, etc. (P. L 1903, p. 47), and that this change of location must be voted upon by the people in order to justify the expenditure therefor. We do not so construe the act of 1903. We think that act is limited in its operation and effect to the selection of a new location for county buildings, and by that is meant a change of the county seat from one town to another in the county, and that it does not relate to the purchase of a different piece of land within the territory of the municipality which is now designated by law as the county seat of any county in this state.

It is also suggested that the act of 1901, as amended by the act of 1902, does not cove er the erection of a county jail, as it is suggested the relators intend to do in this case. We think that it does cover any county buildings to be used for county purposes, and a jail is within this description.

It is stipulated in this case that the assessed valuation of the property of Bergen county for the year 1906 was $60,600,000, and that the $50,000 asked for by the county building committee, and refused by the board o freeholders, is for the purpose of paying preliminary expenses and acquiring land upon wbich to erect two separate buildings, one for a county courthouse and public offices, and the other for a jail, and that the amount thus required is within the amount legally authorized by statute to be appropriated for that purpose.

In this case, in view of the agreement of counsel at the hearing that all the facts are before us that could be shown, if there were an alternative writ issued in the first in. stance, and that, if the court thought a writ should go, that a peremptory writ of mandamus should be issued, an order will be made that a peremptory writ of mandamus issue to the board of freeholders, directing them to issue bonds pursuant to statute.

FORT, J. This writ brings up an order of a justice of the Supreme Court appointing commissioners to condemn land for a public school building in the city of Hoboken. The order of the justice is challenged upon the ground that there is no power in the school board of that city to condemn lands for the reason that the powers to condemn given to school boards by the general school law of October 19, 1903, does not extend to the school board of the city of Hoboken, nor to any school board not created in accordance with sections 38 or 39 of the general school act of 1903 (P. L. 1903, p. 17).

We take a different view of the law applicable to this case. By section 45 of the general school act of 1903 the board of education in any city school district is declared to be a body corporate by the name of the board of education of the city in which it is, and is authorized to have an official seal. By section 47 of that act said board is aúthorized in and by its corporate name to take and condemn land and other property for school purposes in the manner pro vided by law regulating the ascertainment and payment of compensation for property condemned or taken for public use. This confers upon such a board the power to take proceedings for condemnation provided by the general condemnation act (P. L. 1900, p. 79). By section 246 of the general school law all provisions of this act and all acts and parts of acts, general, special, and local, so far as they are inconsistent with the provisions of this act, are hereby repealed. By section 40 of the school act of 1903 it is provided as follows: "In any city school district, until the organization of a board of education in such school district, as provided in sections 38 or 39 of this act, the administration and conduct of the public school, and the management and control of the public school property therein, shall remain in and shall be exercised by any board of education or other body heretofore having control of the public schools therein. Said board of education or other body shall be hereafter deemed to be incorporated under the provisions of section 45 of this act, and shall have all powers and be charged with all the duties conferred or imposed upon the board of education as provided in this article." The section goes on to provide that members of any board of education or other

(76 N. J. L. 70) WENDEL V. BOARD OF EDUCATION OF

CITY OF HOBOKEN. (Supreme Court of New Jersey. June 17, 1907.) 1. EMINENT DOMAIN-DELEGATION OF POWER -SCHOOLS AND SCHOOL DISTRICTS – BOARD OF EDUCATION-POWERS.

The members of the board of education of the city of Hoboken as in office at the time of the approval of the general school act of 1903 (P. L. 1903, p. 5) became a body corporate under that act, and were given the power, conferred by that act, to condemn lands for public school purposes. Their successors, elected as they were, prior to the adoption by the people of either the provisions of section 38 or 39 of that act, have the like powers. 2. STATUTES-SPECIAL LEGISLATION.

The conference of such powers upon existing boards of education, in cities not adopting either section 38 or 39 of said act (P. L. 1903,

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