Aug. W. Cutler, for appellant. Theo. Little, for respondent.

DIXON, J. In supplementary proceed- | ings to collect a judgment obtained by James M. Frost against Daniel D. Craig in the New York city court, the complainant, Isaac N. Falk, was on December 2, 1889, appointed by that court receiver of all the property, real and personal, of said Craig. The New York Code of Civil Procedure enacts: "Sec. 2468. The property of the judgment debtor is vested in a receiver

✦✦ from the time of filing the order appointing him. * Sec. 2469. Where the receiver's title to personal property has become vested, it also extends back by relation for the benefit of the judgment creditor, so as to include the personal property of the judgment debtor at the time of the service of the order or warrant," to bring him before the judge for examination. Such a warrant was served on Craig November 9, 1889. On May 13, 1890, the complainant filed his bill in the court of chancery against Daniel D. Craig, the Mutual Life Insurance Company of New York, Lewis T. Janes, administrator c. t. a., and trustee under the will of Henry Baird, deceased, and others, setting forth that on November 9, 1889, the said Craig was entitled to a cer. tain endowment policy of life insurance is sued to him upon his life by said insurance company for the sum of $2,500; that the said policy was claimed and held by said Janes to secure an indebtedness from said Craig to the Baird estate; and praying a decree to establish the title of the complainant in the policy, and direct its delivery to him, or else to order that the policy be sold, and out of the proceeds the complainant be first paid the amount of the said judgment against Craig. Pending the suit Craig died, and the insurance company brought the amount due on the poljey into court, submitting its disposal to the chancellor's decree upon the contending claims of the complainant and the defendant Janes. After answer by Janes, asserting his prior title, a decree was made sustaining the right of the complainant, and from this decree the administrator appeals.

The complainant, having come into a court of equity for redress, must, of course, recognize the equitable rights of the defendant. 1 Pom. Eq. Jur. § 385. His own claims, whether legal or equitable, did not accrue before November 9, 1889, and if, prior to that time, the defendant obtained an equitable interest in the policy, it must be deemed paramount to the complainant's title. In this court the equitable estate is considered to all intents and purposes as a legal estate, (Cushing v. Blake, 30 N. J. Eq. 689,) and "priorin tempore potiorest in jure," when other reasons for equitable preference are not found. Brown v. Hendrickson, 39 N. J. Law, 239. With regard to the claim of the defendant Janes, as administrator and trustee of the estate of Henry Baird, the case presents the following features: That Daniel D. Craig was the executor and trustee of that estate from January 20, 1888, until November 8, 1889, when he

was removed; that as early as February, 1889, he had converted to his own use assets of the estate to the amount of about $2,000; that then he placed the said policy of insurance among the papers of the estate in a tin box, and with it put a letter, saying that the policy was collateral for the payment of his indebtedness to the estate of Henry Baird; that thereafter (according to his testimony) he did not regard the policy as his individual property, but held it in trust for the Baird estate; that on several occasions between February and November, 1889, be informed those interested in the Baird estate, through their representatives and counsel, that he had disposed of some of the securities belonging to the estate, but had secured the estate by substituting this insurance policy, and that he held the policy for the benefit of the estate; that after the removal of Craig as executor on November 8th, and the appointment of Janes as administrator on November 14, 1889, the policy, with a formal assignment from the former to the latter, was duly delivered to the administrator. These facts form a perfect declaration of trust in favor of the beneficiaries of the Baird estate, making them the equitable owners of the policy for the purpose of reimbursement, and constituting Craig, at the time when his rights are said to have passed to the complainant, a mere trustee for those ben eficiaries. The principle upon which this conclusion rests is thoroughly settled in equity. As applied to mere gifts, it is thus stated by Prof. Pomeroy, (2 Eq. Jur. § 997:) "A person holding property, real or personal, and intending to make a voluntary disposition thereof for the benefit of another, may do so in any one of three modes: (1) He may make a simple conveyance or assignment of it directly to the donee, so as to vest in the latter whatever interest and title the donor has, without the intervention of any trust. (2) He may make a transfer of it to a third person upon trusts declared in favor of the donee. (3) He may retain the title, and declare himself a trustee for the donee, and thus clothe the donee with the beneficial estate. * If the donor adopts the second or third mode, he need not use any technical words or language in express terms creating or declaring a trust, but he must employ language which shows unequivocally an intention on his part to create a trust in a third person or to declare a trust in himself. It is not essential, however, that the donor should part with the possession in the cases where he thus creates or declares a trust. These conclusions are sustained by the decided weight of authority, and must be regarded as the settled rules of equity jurisprudence upon the subject." The numerous cases cited in the notes to the foregoing text fully warrant the doctrines enunciated. The following more recent cases may also be referred to for illustration of the rule applicable to the case in band: Fox v. Hawks, 13 Ch. Div. 822; In re Breton's Estate, 17 Ch. Div. 416; In re Vernon, 32 Ch. Div. 165; Gerrish v. Insurance for Savings, 128 Mass. 159; In re Smith's Estate, 144 Pa. St. 428, 22 Atl. Rep. 916; Bank v.

the specifications, and in accordance with the directions, and to the satisfaction and acceptance, of the engineer, there shall be a final estimate made of said work according to the terms of this agreement, when the balance appearing due to the said party of the first part shall be paid to them, within thirty days thereafter, upon their giving a release, under seal, tu the party of the second part, from all claims and demands whatsoever growing in any manner out of this agreement, and upon their procuring and delivering to the parties of the second part full releases, in proper form, and duly executed, from mechanics and material men, of all liens, claims, and demands for materials furnished and provided, and work and labor done and performed, upon or about the work herein contracted for under this contract. It is further covenanted and agreed between the said parties that the said party of the first part will at all times give personal attention, by competent representative, who shall superintend the work. It is further agreed that the contractors are not to interfere in any way, with the construction of the bookmakers' stand, members' stand or the paddocks, or other work. It is further agreed and understood that the work embraced in this contract shall be commenced within ten days from this date, and prosecuted with such force as the engineer shall deem adequate to its completion within the time specified; and if at any time the said party of the first part shall refuse or neglect to prosecute the work with a force sufficient, in the opinion of the said engineer, for its completion within the time specified in this agreement, then, in that case, the said engineer in charge, or such agents as the engineer shall designate, may proceed to employ such a number of workmen, laborers, and overseers as may, in the opinion of the said engineer, be necessary to insure the completion of the work within the time herein before limited, at such wages as he may find necessary or expedient to give, pay all persons so employed, and charge over the amount so paid to the party of the first part as for so much money paid to them on said contract, or for the failure to prosecute the work with an adequate force, for noncompliance with his directions in regard to the manner of constructing it, or, for any other omission or neglect of the requirements of this agreement and specifications on the part of the party of the first part, the said engineer | may, at his discretion, declare this contract, or any portion or section embraced in it, void. And the said party of the first part hath further covenanted and agreed to take, use, provide, and make all proper, necessary, and sufficient precautions, safeguards, and protections against the occurrence or happening of any accident, injuries, damages, or hurt to any person or property during the progress of the construction of the work herein contracted for, and to be responsible for, and to indemnify and save harmless, the said par. ties of the second part, and the said engineer, from the payments of all sums of money by reason of all or any such accidents, injuries, damages, or hurt that may

happen or occur upon or about said work, and from all fines, penalties, and loss incurred for or by reason of the violation of any city or borough ordinance or regula- › tion or law of the state, while the said work is in progress of construction. And it is mutually agreed and distinctly understood that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same.

"In witness whereof, that parties herein named have hereunto set their seals, and caused their presents to be signed by their secretary, the day and year herein first above named. As to Wallis Iron Works, James I. Taylor. Wallis Iron Works. [Seal.] Wm. T. Wallis, Sec'y. The Monmouth Park Ass'n. [Seal.] By A. J. Cassatt, President. Witness to sig. nature of A. J. Cassatt: T. M. Croft."

"It is hereby further agreed that, in addition to the work herein before described and provided for, the said party of the first part shall provide as bearing pieces to receive ends of purlins, and in lieu of the angle irons already provided for, 3x6 angle irons, 10 8-10 lbs. per foot, and 7 feet long, well bolted to roof truss and to purlin ends. The party of the first part will also construct, complete, the front steps to grand stand, as per revised sheet No. 26. In consideration of the foregoing changes, the party of the second part agrees to pay the additional sum of nineteen hundred and seventy-one ($1,971.61) dollars. Wallis Iron Works. [Seal.] Wm. T. Wallis, Treas. [Seal.] The Monmouth Park Ass'n. By A. J. Cassatt, President. Witness this 11th day of December, 1889: T. M. Croft." Added to this are "revised specifications," the last clause of which is: "Payments. On or about the first day of each month, the engineer will make an approximate estimate of the amount of work erected and delivered under these specifications during the preceding month, and the contractor will be paid ninety per cent. of the amount of these estimates. Thirty days after the acceptance of the completed work by the owner, the retained ten per cent. will be paid the contractor, upon his furnishing satisfactory evidence that no liens or unsatisfied claims exist on the work, or any part of it." These specifications were also signed and sealed by the parties. The pleadings are sufficient to warrant the questions involved in the exceptions taken at the trial.

Gilbert Collins, for plaintiff in error. Jos. D. Bedle, for defendant in error.

DIXON, J., (after stating the facts.) The first exception to be considered took its rise from the fact that the structure was not completed within the time limited by the contract, nor until 94 days after the expiration of a month's extension of that time. The defendant claimed a deduction or set off of $100 for each day's delay. The plaintiff met this claim by insisting that the clause in the contract mentioning the $100 per day is unintelligible, and therefore nugatory, because in its opening line

on the second question, they are irrelevant. Certainly the bills of exceptions do not indicate any alterations or additions which, as matter of law, would relieve the plaintiff from responsibility for the admit ted delay, and consequently there may have been ground for considering the defendant's damages. If there was, the amount of the damages was adjusted by the contract at $100 per day. We think the ruling at the circuit on this point was

erroneous.

We think, also, that the letter, Exhibit PS, written September 10, 1890, by F. Lutourette to the plaintiff, was illegally received in evidence. It was offered and admitted as a decision by the chief engineer of the defendant under the contract. Since it was written after the completion of the work, and after the writer had reased to be the engineer of the defendant, and without notice to the defendant, it could not possess the character attributed to it.

The

The only other exception which it appears useful to notice is that relating to the existence of claims by outside parties. The agreement contains two clauses on this subject,-one under the head, "Sperification;" the other, under the head, “Revised Specification." It seems proper to hold that the latter clause is substituted in the contract for the former, and therefore it only need be considered. It reads: "Thirty days after the acceptance of the completed work by the owner, the retained ten per cent. will be paid the contractor, upon his furnishing satisfactory evidence that no liens or unsatisfied claims exist on the work, or any part of it." expression, "liens or unsatisfied claims on the work," must mean claims which can be enforced against the work, and such claims could exist only under our mechanic's lien law. By "liens" the parties intended claims filed under that law; by "unsatisfied claims," they intended claims which were not, but might be, filed under that law. The statute (Revision, p. 668) provides (section 2) “that when any building shall be erected, in whole or in part, by contract in writing, such building, and the land whereon it stands, shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract: provided such contract, or a duplicate thereof, be filed in the office of the clerk of the county in which such building is situate before such work done or materials furnished;" and (section 13) that no debt shall be a lien by virtue of this act unless a claim is filed as herein before provided within one year from the furnishing the materials or performing the labor for which such debt is due." The contract between these parties was filed January 2, 1890. Hence no liens could arise in favor of outside parties for work done or mate. rials furnished after that date. For work done or materials furnished before that date, no debt would be a lien unless a claim were filed within a year, i. e. before January 2, 1891. At the date last named, no such claim was filed, and, so far as appears, no such claim was ever filed. suit was commenced March 12, 1891. We think these facts furnished satisfactory evidence that there were no liens or un

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satisfied claims on the work when the action was brought, and that on this point there was no error at the trial.

The other exceptions adverted to by counsel for the defendant are either untenable, or on questions not likely to arise upon a new trial. Let the judgment be reversed, and a venire de novo be awarded.

DUERR v. BOARD OF FIRE COM'RS OF CITY OF NEWARK.

(Supreme Court of New Jersey. Feb. 24, 1893.) DISCHARGE OF FIREMAN-OPPORTUNITY TO DE

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A notice that written charges had been preferred against prosecutor, who ployed in the fire department of Newark, and that he must attend the examination of said charges before the board of fire commissioners at 8 o'clock in the evening of May 31st, was served on prosecutor at 10:30 o'clock in the morning of that day. Prosecutor was on duty that day, and by the rules of the department was compelled to remain on duty, except for a short time, insufficient to enable him to prepare for trial. He appeared before the board, objected to the shortness of notice, and asked for time to prepare for trial. Time was refused, and a resolution was passed dismissing him from the department. Held, that prosecutor did not have reasonable notice or a fair trial or reasonable opportunity to make his defense, within the requirements of the fire department act of March 24, 1885, (Supp. Revision, p. 691,) and that the resolution dismissing him from his employment must be set aside.

Certiorari by one Duerr against the board of fire commissioners of the city of Newark to review a resolution of defendant dismissing the prosecutor from his employment in the fire departments Resolution vacated.

Argued November term, 1892, before VAN SYCKEL and MAGIE, JJ.

Francis W. Knowles, for prosecutor. William B. Guild, for defendant.

MAGIE, J. It is conceded that the proceedings brought before us by this writ were taken under, and should conform to the provisions and requirements of, the "Act respecting the fire departments of cities, and regulating the tenure and terms of office of officers and men employed in said fire departments," approved March 24, 1885, (Supp. Revision, p. 691.) Py that act it is provided that no officer or employe in any such fire department shall be removed from office or employment except for certain specified causes, and only after the folle wing proceedings, viz.: (1) Written charges of the cause of complaint preferred, signed by the person making them, and filed in the office of the board in charge of the fire department; and (2) a public examination into the charges by said board, upon "such reasonable notice to the person charged, and in such manner of examination, as the rules and regulations governing the same may prescribe." It is expressly declared to be the intent of the act to give every person charged a fair trial upon the charges, and every reasonable opportunity to make his defense. The adjudication of such a board will not be set aside by this court for trivial or tech

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nical 'asons if the examination and trial have been fair; but, if the right of defense given by the act has not been accorded to the person charged, this court may and ought to intervene. Devault v. Mayor, etc.. 48 N. J. Law, 433, 5 Atl. Rep. 451; Ayers v. Newark, 49 N. J. Law, 170, 6 Atl. Rep. 659; State v. Mayor, etc., Jersey City, (N. J. Sup.) 23 Atl. Rep. 666. The examination of the charges against prosecutor was conducted, in one respect, in such disregard of the express requirements of the act as to compel the intervention of the court. The case shows that the acts charged against prosecutor were committed on May 25 and 26, 1892. Charges were made and presumably signed on May 27th. On May 28th a notice containing a copy of the charges, (unsigned,) and directing prosecutor to appear before the board on May 31st, at 8 o'clock in the evening, to answer to them, was signed by the secretary of the board, and delivered to the captain of the company to which proseentor belonged, for service on him. though delivered to the captain on May 28th, the notice was dated May 31st, and the secretary testifies that the captain was ordered (by whom does not appear) Lot to serve it until May 31st. About half past 10 in the morning of that day it was served on prosecutor. He was then on duty, and could not be excused without special leave from headquarters. He ap. plied in the usual way for such leave, that he might prepare for trial, and was informed that leave was refused. He was temporarily excused by his captain during the day, but he swears he had not time to make any preparation. When he attended before the board he objected to the shortness of notice, and asked for time to prepare for his trial. This was refused; bis trial immediately proceeded, and the resolution dismissing him from the force was adopted the same evening. It does not appear that the board has adopted rules regulating the service of notice upon officers or men charged with offenses under the act as, it seems, may be done. Any such rules must provide for reasonable notice. In the absence of rules, the board must determine whether the notice given was reasonable, and that determination may be here reviewed, and reversed if it deprived the accused of the safeguards the statute designed to give him for his defense. It does not seem open to contention that a notice which allowed an accused only 9 hours to prepare for such a trial could, in general, be deemed a reasonable notice; and if the accused during the period allowed by the notice was compelled by the discipline of the department to remain at his post, except for a very brief period, such a contention would be absurd. The counsel for the board does not thus contend, but he argues that the notice was reasonable in this case. This is first put on the ground that prosecutor was informed on May 26th that the captain intended to prefer charges against him. But the notice which the act re quires to be reasonable is one notifying the accused that charges have been preferred, and will be examined at a certain time and place. It is next argued that v.26A.no.3-10

1. Where a railroad company acquires a right of way for the construction of a bridge over city property by contract with the city, conditioned that the right of way must be used so as not to interfere with the city's right to open a street under such right of way, the company cannot thereafter repudiate its agreement, and acquire a right of way by condemnation, as inability to agree with the owner is a jurisdictional fact necessary to legalize condemnation proceedings; Revision, p. 928, § 100, authorizing condemnation proceedings only where the company cannot agree with the owner for the use or purchase of lands.

2. Jersey City Charter, (P. L. 1871, p. 1113.) § 41, directs streets to be opened by the street and water commissioners in the manner prescribed, "and not otherwise," and requires the commissioners, after appraising the value of the land taken, to estimate and report all other expenses likely to attend the improvement, to report the names of property owners benefited; and, on such a report of appraisements, estimates, determination, and assessments, a hearing is had; and, if two thirds of the property owners to be assessed remonstrate, the improve ment cannot be made. Held, that a resolution by the commissioners declaring that a strip of land the fee of which is in the city shall be a public street, and instructing the engineer to prepare a grade map, and directing the law officers of the city to take measures in the name of the city to secure a public street between given points, and recovering land belonging to private owners, as well as the strip belonging to the city, was proper, and within the power of the commissioners, even though no proceedings were instituted under the statute to open such street.

3. But in such case a resolution that certain railway companies be notified to remove certain abutments placed by them within the line of said street where the same was crossed by the company's right of way, and directing the superintendent of streets to enforce the order, was unauthorized and illegal.

Certiorari to circuit court, Hudson county.

Two cases were heard together. The one was by the state, the mayor, etc., of city of Jersey City, against the National Docks Railway Company; and the other was by the state, the National Docks Railway Company, and others, against the mayor, etc., of city of Jersey City. The first was a certiorari to review an order of the county court appointing commis