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Willard W. Cutler, for plaintiff. Collins & was inexperienced and incompetent, and de Corbin, for defendant.
fendant “utterly failed and neglected to take
any means to prevent the said motor vehicle TRENCHARD, J. The aeclaration
from being so operated by his said daughcon
ter." tains three counts, the first of which alleges
The defendant has demurred separately to that the defendant was the owner and possessor of a certain motor vehicle, capable of
each count, and assigns, among others, the
following grounds: First, that none of the being run upon the public highway at the
counts show that the motor vehicle was at speed of 60 miles an hour, and it thereby be
the time of the accident under the control or came the duty of the defendant to use due care in the management and control thereof,
management of the defendant, or that the "and to only allow careful, experienced, and
person driving it was under the control of
the defendant, or that the relationship of competent persons to operate, propel, and run
master and servant existed between the de the said motor vehicle, and in such way and
fendant and the driver; second, that the manner and at such a rate of speed as to keep the same within safe and proper con
counts allege liability of the owner for the trol.” The breach alleged is that the defend
negligence of a bailee.
The first and third counts plainly disclose ant negligently consented and allowed the vehicle to be run along the public highway by
no cause of action. They are apparently basan inexperienced, careless, and incompetent
ed upon the erroneous assumption that, be
cause the defendant loaned his motor vehicle person, well knowing the person to be incapable of safely operating the vehicle, and by
to some one over whom he had no direction
or control at the time of the accident, he the negligence of such person it was run at
shall be held liable for the mere loaning. such a high rate of speed, to wit, 60 miles an
But no such liability rests upon him. An hour, and in such a careless manner, as to
owner of a vehicle is not liable for an injury run over the plaintiff while upon the public
caused by the negligent driving of a borrowhighway, causing the injury of the plaintiff.
er, if it was not used at the time in the own. The second count alleges that the defend
er's business. Herlihy V. Smith, 116 Mass. ant possessed and had under his control a
265; New York, etc., R. Co. v. New Jersey motor vehicle, capable of being run along the
Electric R. Co., 60 N. J. Law, 338, 38 Atl. public highways at a speed of 60 miles an
828, affirmed 61 N. J. Law, 287, 41 Atl. 1116, hour, to the great danger of the plaintiff and
43 L. R. A. 849. These counts contain no alall other persons lawfully using the high
legation that the vehicle was used at the ways; that it was the duty of the defendant
time in the owner's business; nor is there to use due care in the use and control of
any allegation therein that the vebicle was the same while being operated upon the pub
under the control or management of the de. lic highways to avoid running into the plain- fendant, or that the person driving it was tiff and other persons lawfully using the under the control of the defendant, or that aighways, and to keep the same within prop
the relationship of master and servant exist. er control and to run at no greater speed
ed between the defendant and the driver. than authorized by law; that defendant dis
The second count, however, although loose regarded these duties and did "negligently
ly drawn, we think may stand. It alleges direct, consent, and allow the said motor ve that the defendant did negligently direct, connicle so in his possession and control to be
sent, and allow the motor vehicle to be operoperated by a member of his family, and the
ated by a member of his family, and that, said motor vehicle was then and there so
while such person was operating the same carelessly, negligently, and improperly op for the defendant, the accident was caused erated, propelled, and run by a member of by the carelessness, negligence, and incompe defendant's family, for the said defendant, tency of the person so operating the same. and without regard to the safety of the said It in effect avers the relationship of master plaintiff” and other persons using the high and servant, and that the accident was causway, at such a high rate of speed that it was
ed by the negligence of the servant while not under the control of the person so operat
operating the motor vehicle for the master. ing the same for the defendant, and through There is, perhaps, no rule of law more firmly the negligence of such person ran into the settled than that a master is ordinarily liable plaintiff, who was walking upon the highway, to answer in a civil suit for the tortious act causing the injury complained of.
of his servant, the act be done in the course The third count is substantially the same of his employment in his master's service. as the first, with this difference, however, Whether so done or not must depend upon that it alleges that the defendant carelessly the facts of each particular case. Aycrigg allowed his daughter, "an inexperienced, v. New York & Erie Railroad, 30 N. J. Law, careless, and incompetent person," to operate 460. the vehicle in such manner as not to have it The demurrer to first and third counts is under proper control, well knowing that it sustained, and to the second count is over. was operated by his daughter, and that she ruled
(72 N. J. Eq. 812)
BARTON et al. v. SLIFER. (Court of Chancery of New Jersey. April 18,
1907.) 1. COVENANTS-USE OF LAND-BUILDING RESTRICTIONS—WHO MAY ENFORCE.
Where an owner of land lays it out into streets and lots, and adopts a restrictive covenant as to the building line, and inserts the covenant in all deeds as an exaction from all purchasers for the benefit of each, the equitable right to enforce the covenant inures to each purchaser, irrespective of when he purchased.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, $850, 78.] 2. INJUNCTION BREACH OF RESTRICTIVE
COVENANT-USE OF LAND-SUFFICIENCY OF BILL.
Complainants showed a right to enforce a restrictive building covenant, where their bill averred the purchase of the original tract of land by an association, its subdivision into lots, the adoption of a general building scheme to secure an unobstructed view, etc., to the lot purchasers, the adoption of the restrictive covenant, and its insertion in all deeds made by the association,
(Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, $8 223–242.] 3. COVENANTS USE OF LAND BUILDING LINES-Loss OF RIGHTS.
Where the deeds to all lots in a town contained a uniform restrictive building covenant, complainants' right to enforce it against a neighboring owner was not lost because there had been several violations of the covenant, where the violations in no substantial way affected their property, and did not show any intention to abandon the general plan in the district wherein the parties' property was located.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, $8 50, 120.] 4. INJUNCTION RESTRICTIVE COVENANTS BREACH-BUILDING LINES-LACHES.
Complainants were not estopped by laches to enforce a restrictive building covenant, where when defendant attempted to violate it, they promptly notified the foreman of the work that their rights were being violated, and where a bill was thereafter filed as quickly as it could be procured.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, $ 199.]
Bill for injunction by Charles S. Barton and another against Levi K. Slifer. Preliminary injunction advised.
The bill is filed by complainants to restrain defendant from the erection of a building in violation of the following restrictive building covenant:
“And also under and subject to the ex. press conditions and restrictions that no building of any description whatever shall at any time be erected within ten feet of the front line of said avenue, nor within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within four feet of the outside lines of said lots, nor within ten feet of the front lines thereof), and also that no building, or any part thereof, erected upon the said lot or lots, shall be used or occupied as a livery or
sales stable, dye-house, bone-boiling or skindressing establishment, soap, candle, glue, starch, lamp-black, poudrette or fish-guano manufactory, slaughter-house, piggery or tannery. Nor shall any building be used or occupied as a drug store, without the written consent of the said party of the first part hereto."
The act sought to be enjoined consists of the violation of that part of the covenant prohibiting the erection of a building within four feet of the side line of defendant's lot.
In the year 1879 the tract of land which now comprises Ocean City, Cape May county, was a wild beach and was purchased by the Ocean City Association, and laid out in streets and lots with a view to the establishment of a Christian seaside resort. To that end the covenant in question, with other covenants, was adopted by the association and inserted in all deeds made by it as a part of a general scheme adopted by it for the benefit of the entire tract, with the purpose of securing, among other things, a space of at least eight feet between all buildings to afford light, air, view, and fire protection.
The lot now owned by complainants was conveyed by the Ocean City Association to John C. Lake by deed dated February 3, 1885. The lot now owned by defendant was conveyed by the Ocean City Association to Jacob B. Graw by deed dated July 21, 1886. The deed held by defendant expressly recites that the conveyance is subject to the operation of the covenant above referred to.
The northeasterly line of Ninth street forms the southwesterly side line of the two lots in question, and the lot owned by defendant is next oceanward of that owned by complainants.
A building has been erected on the lot owned by complainants, and that building is located on the lot in conformity to the requirements of the covenant. The proposed building of defendant, if erected of the width intended, will operate to obstruct the view and air to complainants' lot to a greater degree than would be the case if the building should be erected in conformity to the restrictive covenant.
This cause has been heard at the return of an order to show cause for a preliminary in. junction on amended bill and affidavits and answering affidavits.
Bourgeois & Sooy, for complainants. Thompson & Cole, for defendant.
LEAMING, V. C. (after stating the facts). When an owner of a tract of land lays it out into streets and lots and adopts a restrictive covenant of the nature of the one now in question, with a view to secure the defined conditions named in the covenant for the benefit of the entire tract which he seeks to develop, and inserts the covenant in all deeds as a part of the defined scheme and as an exaction from all purchasers for the ben
efit of each purchaser, the equitable right to dences, is essentially the residential portion the enforcement of the covenant enures to of the city, and that in that territory the each purchaser, irrespective of the time of covenant has been preserved. The side lines his purchase. Under the conditions named of the lots in question are on Eleventh street, the benefit to be derived from the covenant which street runs northwesterly and southas a part of the general scheme necessarily easterly from the ocean to the bay, and is apenters into the consideration of each pur proximately the center of the territory referchase, although the covenant may, in terms, red to in the bill as the residential portion only bind each purchaser and his heirs and of the tract. The answering affidavits point assigns.
out six buildings within the territory beIt is urged on behalf of defendant that tween Ninth and Fourteenth streets which the present amended bill and annexed affi are claimed to be located contrary to the redavits do not afford sufficient evidence of the quirements of the covenant. One of these is conditions above stated to warrant the issu on Ninth street and another on Asbury aveance of the preliminary writ sought. While nue near Ninth street. These two buildings the amended bill and affidavits annexed to are approximately two blocks distant from it are not as explicit in details as might be complainants' lots, and are on other streets desired, I entertain the view that the aver and are adjacent to the territory which has ments are sufficient to bring complainants' been referred to as the business section of case within the rule stated. The amended the city, and it is manifest that any violation bill shows the purchase of the original tract of the covenant occasioned by these two by the Ocean City Association and its sub- | buildings in no way affects the desirability division into lots for sale, and the prepara of complainants' property. A third building tion and filing of a map showing the lots referred to as between Ninth and Fourteenth thus defined and the adoption by that cor streets is the Steward building, which buildporation of “a general building scheme for ing is located on the east corner of Twelfth the purpose of securing the unobstructed street and Asbury avenue. It is averred that, view and light and air," and the adoption of the porch posts of that building are flush the restrictive covenant now in question and with the side line of Twelfth street. As to the insertion of that covenant in all deeds this building, it may be said that it is by no which have been executed by the corporation. means certain that the location of the porch The affidavit of S. Wesley Lake, annexed to posts as pointed out operates as a violation the amended bill, sets forth that the corpora of the covenant. But, without determining tion was organized for the establishment of that question, it will be observed that the loa Christian seaside resort, and that the cor cation of the Steward building, like the two poration inserted the covenant in question in buildings already referred to, is on streets all deeds made by it in order that the place other than that on which complainants' propmight be more desirable as a place of resi erty is located, and is more than a block dis. dence, and that the object of the corporation tant, and in no way affects the desirability was to make it impossible for the city to be of complainants' property. The fourth buildbuilt up solid and to secure a space of eight ing pointed out by defendant's affidavits is feet between all buildings for the circulation at Twelfth street and Asbury avenue. This, of air and the preservation of view and fire like the other properties already referred to, protection for the enjoyment of all people, is too distant from complainants' property to and that over 7,000 lots have been sold by
in any way affect its desirability. The fifth the corporation, and that no lot has been violation of the covenant referred to as with. sold without the covenant in question being in the residential district is one now under embodied in the deed of conveyance. None construction at Eleventh street and Bay aveof these averments are controverted.
nue, which building is being erected on the It is also contended on behalf of defend line of Eleventh street. The map filed by de ant that there has been such a departure fendant does not disclose Bay avenue. It is from the general scheme designed to be pre evident that this structure must be many served by the restrictive covenant as to blocks distant from complainants' property. amount to a waiver of the right to its en The sixth violation of the covenant referred forcement.
to as within the territory defined as residenThe record discloses that the territory ex tial is a building occupied by N. C. Clelland, tending from Eighth to Ninth street, in Ocean which is situated on the corner of Eleventh City, has in recent years become the business street and Asbury avenue. This building portion of the city. In that territory the fronts on a street in which complainants are covenant in question has been frequently vio not interested, but the side of the building is lated. Some 12 buildings have been there on the opposite side of the same street on erected in disregard of the covenant, some as which complainants' property is located, and to the front building line and some as to the one block oceanward thereof. side lines. But the amended bill alleges that It is pointed out that the front of this the territory extending southwesterly from building violates the covenant in question, Ninth street to Fourteenth street and from and that at the side of the residence portion the ocean to the bay, in which territory there of the building brick steps lead from the are now 380 buildings, of which 330 are resi building to the side line of the street, and the
porch encroaches on the building line. Com erty. It is not to be expected that the courts plainants' property is in no way affected by will be appealed to for the preservation of the front encroachment, and, while the porch the general scheme in localities where a comand steps at the side of the building may plainant is without interest. It is only when operate to violate the covenant, it is manifest the interest of a property owner is affected that any violation there may be is trivial in that, in my judgment, he can be reasonably its nature.
charged with the duty of applying to the This review of the testimony is made nec court for the preservation of the general essary to intelligently determine whether scheme. This view is forcefully expressed by complainants' right to enforce this covenant Vice Chancellor Emery in Morrow v. Hasselagainst defendant has been lost. From the men (N. J. Ch.) 61 Atl. 369, 371, and I concur review it will be observed that there have in the conclusions there stated by the learned been no violations of the Covenant which Vice Chancellor. have in any substantial way affected ?he prop It is also claimed on behalf of defendant erty of complainants, and but two possible that complainants are in laches in permitting violations upon the streets on which com. the building of defendant to become partially plainants' lot is situated, and that but six
erected before the bill was filed. I think violations of the covenant are alleged within
complainants have done all that can be reaa district in which 380 buildings are erected.
sonably required of them. Defendant is not I think it clear that the equitable right of a resident of this state. complainants to enforce this restrictive cove
Complainants promptly gave notice to the nant has not been lost. Even though · It
foreman of the work that their rights were should be conceded that the 12 violations of
being violated, and the bill was thereafter the covenant which have been permitted in
filed as quickly as it could be procured. what has been defined as the business dis
A preliminary injunction will be advised trict northeasterly of Ninth street has
in accordance with the prayer of the amendamounted to an abandonment, in that district,
ed bill. of the original scheme designed to be preseryed by the covenant, it does not follow from
(75 N, J. L. 175) that fact that the right to the enforcement of the covenant for the preservation of the
FIVE-MILE BEACH LUMBER CO. V. original scheme in a separate district where
FRIDAY et al. essentially different conditions prevail has (Supreme Court of New Jersey. June 10, 1907.) been lost. Changing conditions, such as the
CERTIORARI—WHEN LIES-REVIEW OF ORDER growth of business interests, may well modi.
OF COURT. fy the needs of one portion of a city to such Certiorari will not lie to review an order an extent as to induce the abandonment of of the circuit court in an ordinary action to
enforce a mechanic's lien, since the court is a the general plan as to that portion without
constitutional court of record of general jurisany intentional abandonment of the plan as
diction proceeding according to the course of to territory where other and radically dif the common law. ferent conditions prevail. In this view I am (Ed. Note.-For cases in point, see Cent. Dig. unable to regard the breaches of the covenant
vol. 9, Certiorari, sf 20, 23, 27.] in the territory northeasterly of Ninth street (Syllabus by the Court.) as evidence of an intention to abandon the
Application of the Five-Mile Beach Lumber preservation of the general plan in the resi
Company against Mary E. Friday and others dential portion of the city referred to.
for writ of certiorari. Rule to show cause. As to the territory southwesterly of Ninth
Denied. street, which has been defined as the resi
Argued February term, 1907, before GARdential district, I entertain the view that
RISON, SWAYZE, and TRENCHARD, JJ. the six violations of the covenant pointed out by defendant cannot be considered as suffi Bleakly & Stockwell, for the rule. Matcient evidence to indicate the abandonment of thew Jefferson, James M. E. Hildreth, and the original plan in the district where near French & Richards, opposed. ly 400 buildings have been erected in conformity to the plan. The extremely small SWAYZE, J. After a trial of this case in percentage of the breaches of the covenant the Cape May circuit, the defendant obtained which defendant has pointed out rather tends a rule for a new trial reserving exceptions. to the establishment of the fact that it has
Upon the argument, the plaintiff learned that been the defined purpose of the property hold the only reasons relied upon were the alleged ers in that district to adhere to the preserva errors covered by the exceptions that had tion of the original plan sought to be presery been reserved. Thereupon the plaintiff, relyed by the covenant.
ing upon the decision of this court in Holler I think it also clear that the equitable v. Ross, 67 N. J. Law, 60, 50 Atl. 342, moved right of complainant to the enforcement of to dismiss the rule. Instead of granting the the covenant in question is not impaired by motion, the court amended the rule by elimiisolated breaches of the covenant in locations nating the reservation of exceptions, the where such breaches can in no way be said to benefit of which the defendant waived, and affect the desirability of complainants' prop then granted a new trial. It is this order
which the plaintif now seeks to review by Argued February term, 1907, before FORT, certiorari.
PITNEY, and HENDRICKSON, JJ. The circuit court is a constitutional court
Cornelius Doremus and William H. Galla. of record, having general jurisdiction over
way, for Grant. A. O. Hart, for the Forcommon-law actions inter partes and pro
resters. ceeding therein according to the course of the common law. As such its orders are reviewable, not by certiorari, but by writ of
HENDRICKSON, J. This is an applicaerror, and only after final judgment. Taylor tion for a mandamus requiring the defendant Provision Co. v. Adams Express Co., 72 N.
corporation, a fraternal organization, to reJ. Law, 220, 65 Atl. 508.
voke the order of suspension of Court ManThe proceedings in an action to enforce a hattan No. 8,483 and its officers and members mechanic's lien proceed according to the
from membership in the defendant the parent course of the common law. The statute ex body, and to reinstate such subordinate court pressly enacts that the practice, proceedings,
to full membership therein. The suspension and pleadings thereon shall be conducted,
was summarily ordered by the high chief and the judgment entered, as in suits in said ranger, the chief officer of the organization, circuit court to recover money due on con
on March 23, 1906, on the ground that Court tract. The regular method of review is by
Manhattan did on March 9, 1906, permit one writ of error. Numerous instances are to McNulty, a suspended member of the court, be found in our Reports. It is sufficient to to sit in the sessions of the court and particicite a few of the more recent. Barnaby v.
pate in its business, well knowing that he Bradley & Currier Co., 60 N. J. Law, 158, 37 had been suspended. Subsequently a hearAtl. 764 ; Naylor v. Smith, 63 N. J. Law, 596, ing was given to the suspended court before 44 Atl. 649; Ennis v. Eden Mills Paper Co., the executive council in New York City, 65 N. J. Law, 577, 48 Atl. 610; Murpisey.
which body sustained and continued the susHardy Lumber Co. v. Nicholas, 66 N. J. Law, pension. The relator claims that the sus414, 49 Atl. 447; Turner v. Wells, 67 N. J. | pension was irregularly made, and that the Law, 572, 52 Atl. 358; Buckley v. Hann, 68 alleged hearing before the executive council N. J. Law, 624, 54 Atl. 825; Smith v. Colloty, was so irregularly and unfairly conducted 69 N. J. Law, 365, 55 Atl. 805. So uniform that the proceeding is void. The defendant a practice indicates that the method of re
denies this, and raises, in limine, an objecviewing proceedings in suits to enforce me tion to this court's taking action upon the chanics' liens is the same as in any common application, on the ground that, before its law action in the circuit-by writ of error interference can properly be invoked, the after final judgment, and not by certiorari. suspended court must first exhaust its reme
If it were in our power to award the writ, dy by an appeal to the superior bodies of we ought not to do so in this case. The cir the organization, where such an appeal may cuit court has control of its own rules and be had under its rules. Manifestly, we may correct any inadvertence or mistake should dispose of this objection before taking therein. 1 Tidd's Practice (3d Am. Ed.) *506. up the merits of the complaint. The case The motion is denied, with costs.
shows that, under the rules of the organization, there is a right of appeal to the sub
sidiary high court, which will meet in Sep(75 N. J. L. 109)
tember next, and from the decision of the GRANT V. ANCIENT ORDER OF FOR latter there may be an appeal to the supreme RESTERS.
high court. It should be stated that this is (Supreme Court of New Jersey. June 10, not a case involving property rights or mon1907.)
ey demands, but involves a question of disciMANDAMUS–To FRATERNAL ORDER-REMEDY line only. While the case shows that the WITHIN ORDER.
high court has a sick and funeral benefit deApplication was made to this court by a subordinate branch of a fraternal organiza- partment, the subordinate courts cannot par. tion for a writ of mandamus to compel the re
ticipate in it, unless they are connected with instatement to membership in the parent body that department by becoming contributors to of the subordinate branch, which had been sus
that fund. Court Manhattan was not conpended by the chief officer of the organization under its rule, with the approval of the execu
nected with that department, but had its tive council after a hearing, and it appearing own beneficial department as allowed by the that no property rights or money demands were rules. In such a situation, the law is set. involved, and that the applicant had not first exhausted his right of appeal to the appellate
tled that ordinarily the appeal must be first body within the organization, it was held that
taken within the organization, before rethe writ of mandamus must be denied.
course can be had to the civil courts. Zeliff (Ed. Note.-For cases in point, see Cent, Dig. v. Knights, 53 N. J. Law, 536, 22 Atl. 63. vol. 33, Mandamus, § 259.]
The relator contends that this principle (Syllabus by the Court.)
should not be applied to his application, on Application by the state, on the relation the ground that the irregularity of the hearof Richard Grant, for writ of mandamus to ing was so marked that no testimony or minthe Ancient Order of Forresters. Applica utes were taken and hence there was no rection denied
ord upon which to appeal. But the case