[4] 2. The judge stated as a fact that the | nant contained in a deed of conveyance made husband was the aggressor, and charged that to the municipality pursuant to chapter 93 he who sets up the law of self-defense can- of the Laws of 1894 (P. L. 1894, p. 146). The not be the aggressor and take advantage of covenant is to the effect that the land conthe law of self-defense. This question of veyed, which land was conveyed for park fact should have been left to the jury. The purposes, should be forever "open and unjudge finally did so, but only after having obstructed." What is known as Heinz pier made the statement we have paraphrased. crosses the outer corner of the premises conveyed. To that extent the land conveyed to the municipality is not open and unobstructed. The facts set forth in the answer, are substantially the same as those contained in the plea filed in McAllister v. Atlantic City, 90 N. J. Law, 93, 100 Atl. 198, affirmed 91 N. J. Law, 701, 103 Atl. 1053. Among other things, it avers that it is impossible for the municipality to comply with the covenant

Let the judgment be reversed, and the record remitted for a new trial.

(90 N. J. Eq. 357)

MCALLISTER et al. v. ATLANTIC CITY. (No. 45/692.)

1919.)

1. SPECIFIC PERFORMANCE 13 BILITY OF PERFORMANCE.

Absolute inability of a defendant to perform his undertaking at all when called on by a court to do so precludes decree for its specific performance.

(Court of Chancery of New Jersey. May 22, at this time. The absolute inability of a defendant to perform his undertaking at all, IMPOSSI- when called upon by a court to do so, obviously prevents a decree against him for its specific performance. Pomeroy on Contracts, Specific Performance (2d Ed.) § 293. But this impossibility of performance, as set forth in the answer, appears to have arisen, in part at least, from an agreement which the city has made with the owner of the pier. The answer discloses that the city is bound by an agreement made by it with the owner of the pier to the effect that it would not interfere with the possession of the pier by its owner in its present location except by condemnation proceedings instituted against all piers on the ocean front in pursuance of a scheme for the acquirement by the city of all lands within the beach

2. SPECIFIC PERFORMANCE 13-COVENANTS -IMPOSSIBILITY OF PERFORMANCE-ACQUIESCENCE IN AGREEMENT.

Specific performance of covenant in deed granting to city property for park purposes that park would not be obstructed will not lie, where city has by contract bound itself not to condemn pier claimed as obstruction until it also condemns other piers and complainants have acquiesced in that agreement, since rule as to impossibility of performance would be applicable to complainants.

3. EQUITY 263-MOTION TO STRIKE AN- front park. The answer avers that four othSWER-ALTERNATIVE RELIEF.

If answer to bill affords defense to primary relief of specific performance prayed for, it cannot be stricken because not affording defense to alternative relief sought.

er piers exist on the ocean front, and that funds cannot be procured for their acquirement by reason of the statutory limitation of the amount of the city's indebtedness. This agreement touching uniform condemna

4. DEEDS 160-COVENANTS-REVERSION OF tion of all piers, the answer asserts, was LAND.

made at the time complainants' deed to the city was made. At that time, according to the answer, complainants had petitioned the city to move the ocean front board walk oceanward, to the end that the land between the old and new locations of the board walk could be utilized by complainants for commercial use. That the inner end of Heinz pier then occupied a part of this intervening land, and to accomplish the end then desired by complainants it was necessary to procure the removal of that part of the pier and have it

Hon. C. L. Cole, of Atlantic City, for com- connected with the board walk in its new loplainants.

cation. That the agreement contemplating

Jos. B. Perskie, of Atlantic City, for de- that the part of the pier oceanward of the fendant.

LEAMING, V. C. I am convinced that complainants' motion to strike out defendant's answer must be denied.

[1, 2] 1. The bill seeks to compel defendant municipality to specifically perform a cove

new location of the board walk should not be distributed except by carrying out a general scheme of condemnation of all piers was rendered necessary to accomplish the end then sought by complainants, and was executed with complainants' knowledge and inured to their benefit. That the removal of

(107 A.)

the board walk oceanward and the removal | Section 3 of that act authorizes the city to of the pier from the intervening space and acquire the lands by purchase or condemnathe execution of the agreement touching the tion, and in no way forbids the acquisition remaining part of the pier were all parts of an absolute estate by the city, but requires of one plan, and the resulting benefits to flow that the lands, so acquired, shall be devoted therefrom to complainants afforded the real "exclusively to public use as a public park consideration of the deed made by complain- or place for public resort and recreation ants to the city. These averments of the and to keep the same forever open and unanswer are not entirely specific touching the obstructed for such public use." Section 5 extent complainants participated in and en- of the act authorizes the city to accept couraged the execution of the pier agree- from landowners a dedication of the land ment; but I think that the averments, taken for the uses and purposes named in section together, may be said to disclose sufficient 3, and in so doing to agree with the owners acquiescence of complainants in the execu- to change the location of the board walk tion of the agreement as an essential part of so that the owners may secure the benefit of the general plan inuring to their benefit to the territory intervening between such old equitably afford a bar to their now seeking and new board walk locations. relief inconsistent with the agreement. If The deed of conveyance from complainants complainants' deed to the city was in fact to the city recites, among other things, that made to procure the removal of the board the city is proceeding under the act above walk oceanward with knowledge of the facts referred to to establish a public park, and that its removal and the removal of the is to remove the board walk oceanward to inner end of the pier was to be accomplished the inner line of the park tract, and then through or in part through the instrumentali-expresses as a consideration for the conveyty of the agreement referred to, it seems to me clear that they cannot now equitably seek to compel the city to pursue a course of action in repudiation of that agreement. It follows that, even though the impossibility of performance asserted by the answer may be said to be wholly predicated upon the agreement of the city not to condemn the pier here in question without also condemning the other piers, the impossibility of performance must be deemed absolute, so far as complainants are concerned, since complainants' acquiescence in the agreement for the purpose stated must be regarded as an equitable bar to relief in behalf of complainants, which, if granted, would compel the city to violate the agreement.

Whether in the absence of acquiescence on the part of complainants in the pier agree ment referred to this court can properly compel a municipality to specifically perform a covenant the performance of which will be violative of another covenant made in good faith by the municipality need not be here considered. But it would seem that any suggestion that the city should not have thus bound itself by agreement necessarily enters the field of discretion which the legislative act confers upon the city, since no time is specified in the act within which the general scheme shall be accomplished. It accordingly must be here assumed that the agreement was made by the city to facilitate the ultimate accomplishment of the general scheme. 2. The bill also prays that in default of a decree for specific performance of the covenant contained in complainants' deed a decree may be made declaring the deed to be

null and void.

ance $1 and the benefits to be derived by the vendors by the laying out of the park and building the board walk, and the further consideration that the vendors' land will not be condemned. Its words of grant are:

"Give, grant, bargain, sell and convey to the said party of the second part, and its successors, all their, and each of their, right, title and interest in and to the above-described tract."

Its habendum and tenendum is:

"To have and to hold the said premises with all and singular the appurtenances, unto the said party of the second part, and its successors, for and only for use as a public park or place of resort and recreation, giving to said party of the second part, and to its successors, however, the right to construct, reconstruct, repair, complete and maintain upon the land so conveyed along the interior or inland line of said park or place for public resort as established as aforesaid, an elevated public board walk, in accordance with the provisions of said act, but subject to the following conditions and restrictions: That no railroad nor street railway shall ever be constructed, operated or maintained over, upon or across any portion of the premises hereby granted and conveyed, and that the said land shall never be used for any railroad purposes or uses what

ever."

Then follows a series of covenants on the

part of the municipality. The city covenants: First. To maintain the newly located board walk.

Second. To permit the complainants to connect their lands and properties with the new board walk by proper approaches.

Third. That when by accretions high-water mark shall have receded to a point 300 feet to As already stated, the deed from complain-again remove the board walk 300 feet oceanants to the city was made pursuant to the ward, and when so removed the dedicated land legislative act of 1894. P. L. 1894, p. 146. | within or landward of such new location shall

107 A.-4

be released from the dedication and revert to complainants, their heirs and assigns.

(93 N. J. Law, 123)

SHUPE v. TAGGART.

(Syllabus by the Court.)

1. CHATTEL MORTGAGES

63—AFFIDAVIT—

Fourth. "That the lands hereby granted and dedicated to public use shall forever be and (Supreme Court of New Jersey. May 15, 1919.) remain open, so that the view oceanward from the said elevated public walk erected and to be erected as above mentioned shall be free, open and unobstructed, and that no use shall be made of the said land by the grantee, its successors or assigns, inconsistent with its use as a public park or place for public resort and recreation."

SUFFICIENCY-STATUTE.

An affidavit annexed to a chattel mortgage in these words: "Donald C. Taggart, the mortgagee in the foregoing mortgage named, being duly sworn, on his oath, says that the true consideration of said mortgage is as follows, Complainants accordingly contend that viz.: Money loaned to the said Frederick S. the failure of the city to cause that portion Taggart on November 1, 1916, evidenced by a of the pier which crosses the outer corner certain promissory note made by him to me, of the tract conveyed to be removed is in dated November 1, 1916, and due in one year, violation of the covenant above quoted, and with interest at 6 per cent. per annum, interest seeks a decree declaring the grant null and on which has been paid to May 1, 1917, and void in the event of the failure of the city defendant further says that there is due on to comply with the covenant. It is urged said mortgage the sum of $3,000 besides lawful that if the answer affords a defense to spe-1918"-read together, with the recitals in the interest thereon from the 1st day of May, cific performance, it affords no defense to the body of the mortgage, is a sufficient compliance alternative relief sought. with the terms of the statute. 1 Comp. St. N. J. 1910, p. 463, par. 4; P. L. 1902, p. 487, par. 4.

[3, 4] It seems obvious that if the answer affords a defense to the primary relief of specific performance sought by the bill, it cannot be stricken out on motion for that purpose, even though it should be thought that the alternative relief sought might be sustained on the pleadings.

2. CHATTEL MORTGAGES 63-AFFIDAVIT— RELIANCE WITH STATUTE.

The affidavit and the recitals in the body of the mortgage should be read together to ascer tain whether there is a sufficient compliance with the terms of the statute.

3. CHATTEL MORTGAGES 63 AFFIDAVIT AND RECITALS IN MORTGAGE-MATTERS TO BE SHOWN.

mortgagee, not merely what evidence has been given of the debt, but what is the price of the debt, the cause of the indebtedness, how the debt came into existence, as a loan of money and the like.

4. CHATTEL MORTGAGES 63 AFFIDAVIT -ATTACK BY CREDITORS.

In the absence of fraud, where there is an honest and substantial compliance with the statute, the mortgage will not be open to attack of other creditors, merely because the affidavit is inartificially drawn.

But it may not be inappropriate to here suggest, without at this time determining, that complainants' remedy in the circumstances stated is not a decree declaring the grant null and void. It may be tentatively The affidavit and the recitals in the mortconceded that the estate granted is a deter-gage must show how the relation of creditor minable fee, and that, as such, the city's and debtor arose between the mortgagor and abandonment of the use of the land "as a public park or place of resort and recreation" would be operative to determine it. But the answer fully discloses that no such abandonment has occurred. The utmost that has occurred has been the failure of the city to free an outer corner of the land from the occupancy of the pier, and this pier, the answer avers, is necessary for purposes of health and recreation of the public and is so used. But even conceding that the occupancy of this outer corner of the land by the pier for the purposes stated is violative of the covenant which the city has made touching its obligations to complainants, it does not follow that the breach of covenant in the limited respect stated, which covenant forms no part of the limitation expressed in the deed, is operative to divest the city's estate in the lands and cause the title to revert to complainants. Camden, Atlantic & Ventnor Land Co. v. West Jersey & S. Ry. | lant. Co. (Err. & App.) 105 Atl. 229. If complainants have suffered appreciable damages respondent. through breach of this covenant, the law courts would seem to be the appropriate tribunals for relief.

Appeal from District Court of Newark.

Action for conversion by William F. Shupe against Donald C. Taggart. Judgment for plaintiff, and defendant appeals. Reversed.

Argued February term, 1919, before BERGEN, KALISCH, and BLACK, JJ.

Lloyd Thompson, of Westfield, for appel

Stein, Stein & Hannock, of Newark, for

BLACK, J. [1-3] The fundamental question involved in this case is the sufficiency

I will deny the motion to strike out the of the affidavit to a chattel mortgage under the statute. The contest is between a judg

answer.

(107 A.)

ment creditor, having made a levy and sale | 372. The affidavit in this case in some of under an execution and title or right to pos- the essential facts is not unlike the affidavit session under a chattel mortgage. The case in the case of Black v. Pidgeon, 70 N. J. Law, was tried by the court, resulting in a judg-802, 806, 58 Atl. 372. The affidavit in that ment in favor of the plaintiff for $500, in an action of conversion. The trial court held that the affidavit to the chattel mortgage was insufficient under the statute. The case therefore turns upon the validity of the chattel mortgage, the sufficiency of the affidavit. The mortgage is dated April 13, 1918. This is the affidavit:

"Donald C. Taggart, the mortgagee in the foregoing mortgage named, being duly sworn, on his oath, says that the true consideration of said mortgage is as follows, viz.: Money loaned to the said Frederick S. Taggart on November 1, 1916, evidenced by a certain promissory note made by him to me, dated November 1, 1916, and due in one year, with interest at 6 per cent. per annum, interest on which has been paid to May 1, 1917, and deponent further says that there is due on said mortgage the sum of $3,000 besides lawful interest thereon from the 1st day of May, 1918."

case was held by the court of Errors and Appeals to be in compliance with the terms of the statute. All the cases hold that the affidavit must on its face, or read in connection with the recitals in the mortgage to which it is annexed, show how the relation of creditor and debtor arose between the mortgagor and mortgagee, not merely what evidence has been given of the debt, but what is the price of the debt, the cause of the indebtedness, how the debt came into existence; thus, if a loan of money, a sale of goods or lands, etc. Ehler v. Turner, 35 N. J. Eq. 68, 70; Collerd v. Tully, 77 N. J. Eq. 447, 77 Atl. 1079.

[4] In the absence of fraud, where there is an honest and substantial compliance with the statute, the mortgage will not be open to attack of other creditors, merely because the affidavit is inartificially drawn. Simpson v. Anderson, 75 N. J. Eq. 581, 585, 73 Atl. 493; American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law, 721, 68 Atl. 1078, 16 L. R. A. (N. S.) 703, 127 Am. St. Rep. 822. They should be sustained whenever there is an honest and substantial compliance with the statute. The affidavit is not to be tested by the rules of pleading, nor treated as a technical requirement. Howell v. Stone, 75 N. J. Eq. 289, 71 Atl. 914.

The mortgage recites that it is a security for "the sum of three thousand dollars, together with lawful interest thereon from the first day of May, nineteen hundred and seventeen, as evidenced by a certain promissory note made by me to the said Donald C. Taggart for three thousand dollars ($3,000) and dated November 1, 1916, and the accrued interest." Thus the recitals in the body of the mortgage and the affidavit identify and describe the same debt and the same person to whom the debt is due, and state the debted to the mortgagor in so many words. That was contracted by a loan of money. They should be read together.

The statute provides (1 Com. St. N. J. p. 463, par. 4; P. L. 1902, p. 487, par. 4) that the mortgage should have annexed thereto an affidavit "stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon."

The trial court, as stated, held the affidavit insufficient, and gave judgment for the plaintiff, i. e., in favor of the judgment creditor, on the ground that the affidavit does not state how the debt was created, or on what the consideration is founded, the body of the mortgage does not supply any further information in this regard, citing as authority the case of Dunham v. Cramer, 63 N. J. Eq. 151, 51 Atl. 1011. That case is not in point. Here the affidavit shows how the debt was created, viz., money loaned, and who made the promissory note. Both of these important facts were absent in the case above cited by the court for its decision.

We think the trial court was in error. The affidavit and the recitals in the body of the mortgage should be read together to ascertain whether there is a sufficient compliance with the terms of the statute. Fletcher v. Bonnet, 51 N. J. Eq. 615, 28 Atl. 601; Black v. Pidgeon, 70 N. J. Law, 806, 58 Atl.

It is argued, however: (a) That the affidavit does not state the amount of money loan

is true. We think, however, the only legitimate inference that can be drawn from what it stated is that it was a loan of $3,000, besides interest from the 1st day of May, 1918. (b) It does not state the name of the person who loaned the money. It does state, however, that the money loaned was evidenced by a promissory note "made by him to me dated November 1, 1916." This is sufficient. The Negotiable Instrument Act (3 Comp. Sts. p. 3738, § 24; P. L. 1902, p. 589, § 24) provides that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value. All the cases cited in which the affidavit was held to be insufficient upon examination will be found to have some element absent that is present in this case. They state merely what evidence had been given of the debt, or simply the amount of the debt, as in Ehler v. Turner, 35 N. J. Eq. 68; Graham Button Co. v. Spielmann, 50 N. J. Eq. 120, 24 Atl. 571; Dunham v. Cramer, 63 N. J. Eq. 151, 51 Atl. 1011; Miller v. Gourley, 65 N. J. Eq. 237, 55 Atl. 1083; Collerd v. Tully, 77 N. J. Eq. 447, 77 Atl. 1079; Cross v. Printing Corporation (Ch.) 104 Atl. 727.

This point has been under discussion in

many cases in our courts. In addition to those above cited, other cases will be found collected in 1 Comp. Sts. N. J. p. 464, 1 New Jersey Digest, p. 722, par. 22, and 8 New Jersey Digest, Supplement, p. 267, par. 22. The sufficiency of the affidavit was under consideration in the following cases: Bollschweiler v. Parker House Hotel Co., 83 N. J. Eq. 459, 91 Atl. 1027; Id., 84 N. J. Eq. 502, 95 Atl. 549; Sadler v. Banaff, 85 N. J. Eq. 335, 96 Atl. 361; Lippincott v. Shivers, 86 N. J. Eq. 59, 97 Atl. 269, affirmed 86 N. J. Eq. 409, 99 Atl.

109.

Joseph T. Hague and Paul Q. Oliver, both of Elizabeth, for defendants.

PER CURIAM. This writ was allowed to review an ordinance adopted by the city of Elizabeth on the 21st day of September, 1916. By the first section the city gave its consent to the defendant to construct and maintain a railroad spur or siding across Fulton street near Front street and running into the plant of the defendants. The second section provided that the city may, when it deems it advisable, order the siding removed from the

The judgment of the district court is re- street, and that the construction be subject versed.

3. MUNICIPAL CORPORATIONS
689(1)
GRANT OF RIGHT IN STREET-ORDINANCES-
ATTACK UPON.

Prosecutor, who sought to review a municipal ordinance authorizing the construction of a spur track across a street and sidewalk, held not to suffer any special damage different from that of other citizens by reason of the occasional blocking of the street, and hence he could not maintain certiorari to review the ordinance; that remedy being indictment for the blocking.

to the supervision of the street commissioner. [1] We may assume that the ordinance is ultra vires, but the question remains wheth er the prosecutor has shown that he has or will suffer a special injury. "The individual applying must show that he will suffer a special injury beyond that which shall affect him in common with the remainder of the public." Jersey City v. Traphagen, 53 N. J. Law, 434, 22 Atl. 190. In Montgomery v. Trenton, 36 N. J. Law, 79, a similar ordinance was held to be ultra vires, but the court dismissed the writ upon the ground that even after the projected work was completed the prosecutors could not maintain an action for the damages which they might sustain in common with other citizens; they could have a private remedy only for such injury as was peculiar to themselves, and, unless this prosecutor has shown special damages resulting from the ordinance, that case must control this.

[2, 3] The testimony shows that the defendant owns the land on both sides of Fulton street at the point where the spur is laid over it, and that the track is used to take and bring, from defendant's lot adjoining that of prosecutor, materials used and produced in and by a large crushing machine, standing thereon; that defendant has laid on its lands a track which connects with the spur crossing the street; that it runs a locomotive on the track on its own land which, together with the crusher, throws out large quantities of smoke which finds its way into prosecutor's building in such quantities as to create a nuisance.

The special injury which prosecutor claims is stated in his testimony as follows:

"Q. What is it you object to down there in the lot next door to you, what do you object to? A. My objection is that I cannot live near Certiorari by Morris Schaefer against the train when it smokes, I can't open no winSamuel L. Moore & Sons and others to re-dows, that is my objection. Q. You object to view an ordinance adopted by the City of the operation of the skull crusher? A. Yes, Elizabeth. Writ dismissed. sir. Q. And you object to the smoke of the crane when it is operated on the property next Argued February term, 1918, before BER- door to you, don't you? A. Yes, sir. Q. You GEN and BLACK, JJ.

have no objection to the railroad track itself? A. I have objection when they went and blockJohn J. Stamler and Samuel Koestler, both ed the sidewalk up. I can't pass through. Q. of Elizabeth, for prosecutor. They block the sidewalk up? A. Yes."