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shows that the relator and his witnesses Suit by Orlando Wood, executor of Almira were examined in the presence of the coun L. Wood, deceased, and others, against Maria cil, and that there were some minutes kept Lembcke and another. Decree directed for of the proceedings, and it cannot be said complainants. that the action of the council was void for

Willard P. Voorhees, for complainants, want of jurisdiction. It is presumed that

W. Edwin Florance, for defendants. the appellate body within the organization will do justice between the parties. Zeliff

BERGEN, V. C. The last will anâ testav. Knights, supra. So that in the present ment of Almira Wood, deceased, after apstatus of this controversy we are impelled to

pointing her son Orlando Wood executor, and decline to take cognizance of it.

directing that all of her debts be paid, reads The application for a mandamus must be as follows: “Third, I give and bequeath undenied, with costs.

to my six children as follows: John E. Wood, Orlando Wood, Philip H. Wood, and Almira M. Dunham, each to have and to hold one

sixth part equally each of all that I may MANNING v. FALLON.

die possessed, either real or personal as to (Supreme Court of New Jersey. June 10, 1907.)

the remainder having advanced Ambrose MONEY RECEIVED-GROUNDS FOR ACTION.

Wood, Eight Hundred Dollars, he is to have Where plaintiff gave defendant money for the purpose of purchasing a saloon for him, and

one-sixth part less the amount of Eight hundefendant purchased a saloon with the money, dred Dollars, and as to the remaining onebut took possession thereof himself, operating it sixth part of all I may die possessed of, I and receiving the proceeds, and refused plain

do order to be given in trust to Orlando tiff possession, plaintiff was entitled to recover the amount he had given defendant in an action

Wood for the use of Mortimer Wood to be as for money had and received.

paid to the said Mortimer Wood as his neces[Ed. Note.--For cases in point, see Cent. Dig. sities may seem to require." Since the death vol. 35, Money Received, § 27.]

of the testatrix the executor named in the Action by William B. Manning against will and all of the children and legatees of John J. Fallon. On rule to show cause. Rule the testatrix entered into a written agreedischarged.

ment with the defendants, by the terms of Argued February term, 1907, before FORT, which they agreed to convey to the defendant HENDRICKSON, and PITNEY, JJ. certain real estate of which the testatrix Herrman & Steelman, for plaintiff. Man

died seised, and the defendants bound themning & Atkinson, for defendant.

selves to purchase. The defendants having

refused to comply with the agreement, upon FORT, J. This was a suit brought to re

the ground that the will did not confer upon cover $740 which the plaintiff alleged he gave

the executor any power of sale, the bill in to the defendant for the purpose of purchas

this cause was filed to compel the specific ing a saloon for him in Jersey City. The de

performance of the contract of sale by the

defendants. The only question raised which fendant did purchase a saloon and used his plaintiff's money for that purpose, but the de

it is necessary to determine is that the exec

utor is not vested, either expressly or by fendant took possession of the saloon himself, operated it, received the proceeds, and

implication, with a power of sale, and there

fore a marketable title is not offered. refused to let the plaintiff have the saloon, and finally ejected him from it.

The testatrix in and by her will appoints

Plaintiff then brought this action against the defend

an executor to manage and settle her estate, ant as for money had and received. There

and then, blending her real and personal was a verdict for the plaintiff, and, we think,

possessions, gives to four of her children rightly.

each a one-sixth part of the whole, to anThere was no error in the charge of the

other one-sixth less $800 charged as an adcourt, or in the admission of evidence.

vancement, and the remaining one-sixth to The rule to show cause is discharged.

Orlando Wood, the executor, in trust for the use of another son. It thus appears that the

testatrix intended an equal division of her (72 N. J. Eq. 851)

entire estate, real and personal. What one WOOD et. al. V. LEMBCKE et al.

sixth would amount to, after the payment

of debts, can only be ascertained after the (Court of Chancery of New Jersey. May 9, 1907.)

executor has fulfilled the duties of his office WILLS-CONSTRUCTION-CREATION OF POWER

and settled his final account, to determine -CONVEYANCE BY EXECUTOR.

which there must be a sale of all the real A testatrix, after appointing an executor, and personal estate, for the testatrix has by directed the payment of her debts, and then

her will blended the two kinds of property blended her real and personal estate, giving to four children each one-sixth, to another child

into a common fund. It is a part of the duty one-sixth less $800 charged as an advancement, of the executor to make the division required and the remainder to the executor in trust for by the will and to hold at least one share in another child. Held, that the executor had authority to convey real estate, since to make the

trust. "If the executor is directed by the division and establish the trust a sale of the

will, or bound by law, to see to the applicareal estate was necessary.

tion of the proceeds of the sale, or if the

proceeds, in the disposition of them, are Essex. A portion of the work provided for mixed up and blended with the personalty, therein was subcontracted a few days later which it is the duty of the executor to dis to James Seme. Seme gave a bond to Stewpose of and pay over, then a power of sale art & Abbott conditional for the due peris conferred on the executor by implication." formance of his subcontract, and the com. Lippincott's Ex'r v. Lippincott, 19 N. J. Eq. plainant, a Maryland corporation which is en121. The proceeds of this estate will, under gaged in the surety business, became surety this will, have to pass through the hands of to Stewart & Abbott thereon. In June, 1903, the executor in the form of money. To make Seme discontinued work under his subconthe division and establish the trust requires tract, and thereupon, in pursuance of a cona sale of the land; and, although a power of dition in the bond, the surety company, with sale is not expressly given, it arises under the assent of Stewart & Abbott, undertook the circumtances existing in this case by to finish Seme's contract, and this they claim implication.

they have now fully performed. On DecemThe result, therefore, is that the objection ber 10, 1904, Stewart & Abbott, so the bill made by the defendant is not well founded; claims, were indebted to the complainant for and, there being no other reason offered why labor and materials furnished by it in the this contract should not be specifically per performance of the Seme contract in the sum formed, it will be so decreed.

of thirty-five thousand and odd dollars, which they refused to pay, and thereupon on that

day it took steps under the municipalities (72 N. J. B. 841)

lien law to obtain a lien on the moneys owing UNITED STATES FIDELITY & GUARAN

by the city of Newark to Stewart & Abbott. TY CO. V. CITY OF NEWARK et al. The bill alleges that at the time it was filed (Court of Chancery of New Jersey. May 18, the city of Newark owed Stewart & Abbott 1907.)

several distinct and separate amounts of 1. MUNICIPAL CORPORATIONS_PUBLIC WORKS

money arising out of the contract, which ag. -CONTRACTOR'S LIEN-STATUTES. P. L. 1892, p. 369, creating a lien on funds

gregated upwards of $135,000. Some time in due public contractors for the benefit of labor. December, 1904, and, as the bill alleges, after ers and materialmen, and providing for the en the filing of the lien claim, the members of forcement of such lien, does not contemplate the firm of Stewart & Abbott transferred and an action in the Chancery Court by the original contractor against the municipality.

assigned to James C. Stewart and Alexander 2. SAME-NATURE OF PROCEEDING SCOPE OF M. Stewart the moneys due and to grow due RELIEF.

under their contract. The bill claims that P. L. 1892, p. 369, creates a lien on funds this assignment was subject to the complaindue municipal contractors for the benefit of

ants' lien claim. In the meantime John L. laborers and materialmen, which sections 1 and 5 declare shall extend to the full extent of the Stewart, a member of the firm of Stewart claim or demand and to the extent of the liabil & Abbott, died, leaving a will by which he ity of the contractor for the claim preferred.

appointed Alexander M. Stewart and James Held, that a proceeding to enforce such lien was a proceeding in rem limited to a determination

C. Stewart as executors thereof. The de of the lien claims against the contractors, and fendants are (1) the city of Newark, (2) the to the application of the funds due the contract board of street and water commissioners of ors from the municipality to the extent neces

Newark, (3) Frederick W. Abbott, surviving sary to pay such liens, or, if the fund is insufficient, then to distribute the same among the

partner of Stewart & Abbott, (4) James C. lienors pro rata.

Stewart and Alexander M. Stewart, assign3. SAME-CROSS-BILL.

ees of Stewart & Abbott, (5) John C. Stewart In a suit to enforce a lien on an amount and Alexander M. Stewart as executors of due a municipal contractor, given by P. L. 1892, p. 369, the court has no jurisdiction to

the will of John L. Stewart, deceased, (6) entertain a cross-bill by the contractor's rep the Empire State Granite Company, another resentatives for the purpose of an accounting lienor. The prayer is for a decree adjudging between such representatives and the munici

the validity of the complainant's lien, and pality.

directing the city to pay over to the complainSuit by the United States Fidelity & Guar ant the amount claimed therein out of the anty Company against the city of Newark funds due or to become due from the city to and others, in which Frederick W. Abbott, Stewart & Abbott, or their assignees, with surviving partner of the firm of Stewart & interest and costs. Abbott, and James C. Stewart and Alexander The city of Newark and the board of street Stewart, as executors and assignees of John and water commissioners answered this bill, L. Stewart, deceased, filed a cross-bill. On admitting the Stewart & Abbott contract, and motion to strike such cross-bill. Motion

stating upon information and belief the Seme granted.

subcontract and the suretyship of the comFrancis Child, Jr., and Herbert Boggs, for plainant thereon, but neither admit nor deny the motion. Sherrard Depue, opposed.

the relations between Senie and the surety

company, or between the surety company and HOWELL, V. C. On August 15, 1901, the Stewart & Abbott, and claim that they have city of Newark entered into a contract with no knowledge of the amount of money owing Stewart & Abbott for the construction of to the complainant by Stewart & Abbott. a reservoir at Cedar Grove in the county of They deny that they have in hand the moneys

claimed in that behalf in the bill, but say found due upon such an accounting, including that there would be considerable money due interest. This cross-bill, however, admits and to Stewart & Abbott under their contract claims in paragraph 45 thereof that in addiwith the city if they had performed all their tion to this claim for extra work which first obligations thereunder; that they had incur appears in this cross-bill the city of Newark red large penalties, and deductions from the owes to Stewart & Abbott's representatives contract price would have to be made; and large sums of money due under said contract that there would then be little if anything which have not been paid over by it, the exdue to them on account of their contract. act amount of which is unknown to them, In the twelfth paragraph of the answer the but which they believe to be upwards of the city uses this language: “It submits to this sum of $132,000. There is no prayer in the court the question of how much if anything bill for any discovery or other specific relief. is due by the city of Newark or from the city A motion is now made on behalf of the of Newark to the said Stewart & Abbott, or city of Newark under the 213th rule to strike to their assignee, or to this complainant, or this last-mentioned cross-bill from the files, to any person entitled to receive the same." for the following reasons: (1) Because the An answer was also filed by Frederick W. cross-bill is multifarious in that it seeks difAbbott, surviving partner, and James O. ferent forms of relief against the complainStewart and Alexander M. Stewart, as ex ant and the defendant, the city of Newark. ecutors and assignees. They admit the Stew (2) Because the bill is filed under the muart & Abbott contract, the Seme subcontract, nicipalities lien law which creates a purely the bond of Senie and the surety company, statutory jurisdiction, and there is no provi. Seme's abandonment of the work, its per sion for affirmative relief of the nature prayformance by the surety company, the filing ed for. (3) Because the cross-complainants of the alleged lien, the indebtedness of the have a complete and adequate remedy at city of Newark in large amounts to Stewart law. & Abbott, the assignment of the moneys due The only cross-bill that the moving defendto James C. Stewart, and Alexander M. Stew- ant (the city of Newark) is interested in is art claiming that the assignment was made the one that was brought into the case by before the filing of the lien claim by the com the amendment above mentioned, and the plainant, but they deny that Stewart & Ab only relief prayed thereby is that the city of bott were indebted to the complainant in the Newark and the board of street and water sum of $35,000, or any other sum, or that the commissioners may account to the Stewart surety company acquired any lien upon any & Abbott representatives for the extra work moneys due from the city of Newark; and mentioned therein, and that a decree be made they set out in detail the series of transac directing the city to pay the amount so found tions and settlements between Stewart & Ab due. There appears to be no particular rebott and Seme and the surety company, and lief sought against the complainant. This claim that the ty company is indebted to being the situation, I shall discuss the moStewart & Abbott, or the persons who now tion without reference to the subdivisions of represent them, in a large amount of money. the reasons stated in the notice. It will be They then exhibit their cross-bill against the well to begin by consideration of the statsurety company, setting up the transactions ute wbich authorizes the suit to be brought. between Stewart & Abbott and their repre It must be remembered that the proceeding is sentatives on the one hand, and Seme and the wholly statutory, and can be in touch with surety company on the other hand, and pray the ordinary systematic methods of the for an accounting of these transactions, and Court of Chancery only at the point of prothat the court may by its decree direct the cedure. Beyond mere procedure, the rights, surety company to pay to the answering de duties, and liabilities of the parties are regufendants whatever may be found due on such lated by the statute. This act (P. L. 1892, an accounting.

p. 369) has its object expressed in the title. This answer was subsequently amended by It is an act to secure to laborers and mateadding thereto at the conclusion of the cross rialmen payment of moneys due to them for bill embodied therein another cross-bill sepa labor or materials furnished by them toward rate and distinct from the one above mention the performance of public works. It does ed exhibited against the city of Newark and not contemplate an action in this court by an the board of street and water commissioners original contractor against the municipality. and the surety company (the complainant), Its office is merely to create a lien in favor the object and purpose of which is to charge of subcontractors, laborers, and materialmen, the city of Newark with a large amount of and to provide the means for foreclosing the work as extra work in addition to that pro

It was largely on this ground that vided for in the original contract of 1901, the Court of Appeals beld that the Court of the prayer being that an accounting may be Chancery alone had jurisdiction to entertain taken of the moneys due from the city of suits under the act. Delafield Construction Newark and the board of street and water Company v. Sayre, 60 N. J. Law, 449, 38 Atl. commissioners to Stewart & Abbott's present 666. As I read the statute, the office of a representatives, and that a decree be made suit under it is (1) to ascertain whether a directing the city to pay them the amount lien has been formally perfected by proper

same.

filing and service of notices; (2) whether due to the contractor is undisputed, the sole sufficient money earned or to be earned un question for adjudication is the amount due der the contract remains on which the lien to the lien claimants, respectively, from the can fasten; and (3) an ascertainment of contractor. When that has been ascertained, the amount due on the lien, and a decree then the function of the court is to apportion against the municipality for that amount. the amount due the contractor among the The reason and spirit of the act in my opin lien claimants in the proper proportion, proion will be satisfied by inquiring in this ac vided the fund under the control of the tion, not how much money is actually due court is sufficient to answer that purpose; from the municipality to the contractor, but if not sufficient, then pro rata until the fund whether sufficient money remains to meet in hand is exhausted. At this stage the the liens which shall be established. There jurisdiction of the court under the statute seems to be no reason for pushing the in ends. No personal judgment, either for or quiry beyond this point, and no reason for against a lien claimant, can be given, nor entertaining a litigation between the parties does the statute provide for a judgment to the original contract, excepting for the against a municipality in case the amount purpose of providing for the established due to the contractor exceeds the sums due liens. The Court of Appeals in the case just to the lien claimants." cited declares that there is no provision for This being the nature of the proceeding, a personal judgment against the contractor how stands the cross-bill with relation to it. as a debtor, but that the right of the claim A cross-bill is a mode of defense to the origants to obtain such judgments against him inal suit, and in its subject-matter it must be in other actions is expressly preserved. In confined to the scope of the original cause of Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. action and to the defense set out in the an1060, Vice Chancellor Grey declined to enter swer of the cross-complainant. In this case a personal decree against the lienor on a lien the cross-bill is not intended for any such preferred under the act in question.

purpose. To say that the city of Newark It is quite clear that the statute did not owes more than enough money to pay the mean to authorize this court to make a final liens described in the bill is no defense to and determinative adjudication between the the original suit. Such an allegation in a municipality and the contractor, but meant cross-bill does not aid in elucidating the to have the inquiry go so far only as to as problems raised by the original bill. The adcertain whether there remained a sufficient mission or claim in the cross-bill that the city amount of contract money to pay the liens owes more than enough to pay the alleged which are found to be valid liens. When we liens shows this in the most conclusive manconsider that the action to determine or ter

ner.

In effect the cross-complainant comes minate the lien may be brought by the con into court saying there is money enough in tractor or by the municipality as well as by the city treasury to pay all these so-called the claimant, and that their separate actions liens if they shall be established as such, and, may be consolidated, and that the complain- according to our calculation, much more than ants' right to bring personal actions in other enough; but we desire that the court shall courts is preserved, we can readily see that go beyond the purview of the original suit the proceeding was intended to be a proceed and ascertain for us the amount of this ing in rem, much like the proceeding for the excess and try out all the difficult questions foreclosure of a pledge or mortgage, and re which are raised by the cross-bill in connecsembling in many of its features the ordi tion therewith, and ascertain for us the nary bill of interpleader. Again, the nature amount of this excess, and give us a decree and extent of the lien created by the statute and execution therefor. In other words, the is another argument in favor of this view. cross-complainant comes into court asking Sections 1 and 5 describe these qualities and for a decree in personam in a statutory suit give a lien, not on the whole fund necessari which provides only for a remedy in rem. ly, but “to the full extent of such claim or If no money decree in personam can be made demand," and "to the extent of the liability in this proceeding against the contractor, of the contractor for the claim preferred." nor against the lienor, on the ground that These are limitations upon the extent of the the proceeding is one in rem, it is difficult lien, and, inasmuch as this court can only to see how the court can make the money foreclose to that extent, it would seem as if decree in favor of the cross-complainant the jurisdiction of the court must stop at against the municipality. In fact, Chief that point. In Norton v. Sinkhorn, 63 N. J. Justice Depue in the opinion just quoted deEq. 313, 50 Atl. 506, the Court of Appeals clares against the proposition. held that the proceeding was in rem; that it In the Norton Case, in Chancery (61 N. J. was a controversy over à particular fund in Eq. 508, 48 Atl. 822), also before Vice Chanvolving only the amount due to the contract cellor Grey, Norton, the subcontractor, who or from the owner and the amount due to had furnished stone for a road which was the lien claimants respectively. Chief Jus being built by Sinkhorn and Walton in Mertice Depue says (at page 318 of 63 N. J. Eq., cer county, filed a bill to enforce a lien under page 508 of 50 Atl.): "Where the amount the Municipalities Lien Law. Sinkhorn an.

swered that Norton had so delayed his per which the court has undoubted jurisdiction formance of the stone contract that he was over the subject-matter. subjected to a loss in completing the work. My conclusion, therefore, is that the crossHe also filed a cross-bill against Norton bill must be stricken from the files. claiming that the amount of loss was such that he was obliged to pay a greater sum

(72 N. J. Eq, 836) than was coming to Norton, and for the ex

WILSON V. ANTHONY et al. cess he prayed, by way of cross-bill, for a decree in personam against Norton Norton

(Court of Chancery of New Jersey. May 2

1907.) then moved under rule 213 to strike this de fense from the answer, and also to strike out

JUDGMENTS-EQUITABLE RELIEF-FRAUD.

The fraud in obtaining a foreign judgment the whole of the cross-bill which sought for which equity will enjoin execution of a affirmative relief against him. The Vice domestic judgment founded on the foreign judgChancellor struck out the cross-bill, upon the

ment does not relate to the cause of action,

or to evidence adduced before the foreign court, ground that there was no provision for a per

but to deception and downright fraud in prosonal judgment against the claimant-citing curing jurisdiction, or in preventing defendant Delafield v. Sayre, supra, as an interpreta-by fraudulent means from presenting his de

fense. tion of a doubtful statute. He declared that this case had established a mode of procedure

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 30, Judgment, $ 785.) which had been followed, and that, inasmuch as the cross-bill was wholly dependent for

Suit by Charles A. Wilson against Roy F. its support upon an interpretation of the Anthony and others. Heard on motion for statute that there might be a personal decree

an injunction to restrain the execution of a against the subcontractor for the balance due judgment at law. Injunction denied. from him, he struck out the whole cross-bill.

See 65 Atl. 988. Coming on to the parts of the answer set On June 7, 1904, one Samuel L. Bailey reting up the same defenses practically, he covered a judgment by default against the struck out those also. The Court of Appeals compli ant, Wilso in the upreme Court in 63 N. J. Eq. 313, 50 Atl. 506, modifying the of the state of New York for $1,594.31. This decree below, held that the cross-bill was judgment was assigned to the defendant Anproperly stricken out, but that the answer thony, who brought suit thereon in the New should have been allowed to stand.

Jersey Supreme Court. Wilson pleaded to Leaving now out of consideration the ques the action that he had not been served with tion of procuring a personal decree in favor process in the New York suit, and the action of the Stewart & Abbott representatives was tried upon this issue before the Chief against the city of Newark, and omitting Justice and a jury on April 10, 1906. There that portion of the prayer from the cross-bill, was a verdict for the plaintiff, and an affirmwhat is left amounts to a prayer for account ance of the judgment entered thereon by the ing. The cross-bill is not necessary to pro Court of Errors and Appeals; the judgment cure an accounting. All the relief which can being finally entered for $1,845.55. Wilson, be had under any prayer for an accounting in May, 1906, after the verdict in the New can be had on the original bill and answers, Jersey action, moved the New York Supreme so that the cross-bill is not only entirely un Court to set aside the judgment. This monecessary, but is worse than useless, because tion was heard in October, 1906, and, as was it adds to the expense and delay of finally stated on the argument, was denied on the adjusting the issues presented. Johnson y. ground of laches. Again, in 1907, Wilson Buttler, 31 N. J. Eq. 36; Scott v. Lalor, 18 made a second motion in the New York SuN. J. Eq. 301.

preme Court to set aside the service of the It was argued against the motion that the summons in that action and the judgment submission by the city to this court of the consequent thereon, which motion was like question of the amount due by it on the con wise denied. The complainant now comes tract was practically a consent that the court to this court with a bill praying that Anthony might take jurisdiction of all the matters in & Bailey may be enjoined from enforcing pay. difference disclosed by the cross-bill. I do ment, not only of the New Jersey judgment, not think that this statement in the answer but of the New York judgment as well, on should have any such broad construction. the ground of fraud. The fraud set out in Manifestly what the city meant to do was the bill consists of allegations (1) that Wilson to submit the issues raised by bill and an was not served with process in the New York swer, and, indeed, I do not think it could go suit, (2) that the complaint there was withso far as to admit a jurisdiction under the held from the files until the day the judgment statute in question to make a decree not con was entered, and (3) that Bailey made a templated by it.

false affidavit to the complaint. The comIf my interpretation of the statute is cor plaint charges Wilson with an indebtedness rect, this court, notwithstanding the submis of $1,300 for 2,000 bushels of corn and the sion, would still be without power to act be husks and stalks on which the same was cause it has no jurisdiction over the subject grown, and the affidavit verifies the complaint matter. The cases cited in the cross-com that the same is true to the plaintiff's own plainant's brief on this point are all cases iñ | knowledge.

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