She the act of boarding the car it was suddenly | ators was disconnected, and when steam was speeded up and plaintiff injured. Whether turned on the room became saturated with it, the request to plaintiff to board the car was and the furniture thereby was badly damone that was made manifest to him by words, aged. Judgment was given for the plaintiff signs, or actions is something that must be for $150. left to the evidence or to a bill of particulars to disclose; but, as before intimated, we consider that the language of the present declaration fairly sets up facts-not necessarily evidential facts, but ultimate factsfrom which a legal conclusion of invitation is to be deduced, and therefore is not insufficient in law upon any ground set up in the causes of demurrer or urged in the argument. It follows that the judgment of the Supreme Court should be reversed, and the record remitted to the circuit court to the end that the defendant may apply there for leave to withdraw its demurrer and plead to the merits. Tomlinson v. Armour & Co., 75 N. J. Law, 748, 762, 70 Atl. 314, 19 L. R. A. (N. S.) 923. (84 N. J. L. 193) LE PICHARD v. GEORGE N. THURBER (Supreme Court of New Jersey. April 15, (Syllabus by the Court.) LANDLORD AND TENANT (§ 166*) - ESCAPE OF [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 647-655, 657-660; Dec. Dig. § 166.*] The evidence shows that the plaintiff, after putting the furniture in the apartment, preparatory to going there to reside, came back after some days and found the place full of steam and the radiator disconnected and steam coming in from the open pipe. testified that she was unable to live in this apartment and had to go elsewhere, paying board. She testified that Mr. Taylor, acting as agent for the defendant, had shown her through the apartment before renting it, and assured her that it had just been put in first-class condition, and that steam heat and hot water would be supplied. The receipt for the rent contains this notice: "No repairs will be done or paid for by the landlord of the above premises, except those agreed to in writing at the time of rental." There was a motion to nonsuit, on the ground that no negligence of the defendant was shown, and that plaintiff was guilty of contributory negligence. There is no difficulty about this feature of the case, since the fact that the radiator was disconnected, taken in connection with the fact that such a condition generally requires the work of a steam fitter, and the further fact that the apartment was shown to plaintiff as an entirely new apartment, justifies the inference that the apartment was left in an unfinished condition, so far as the radiator was concerned, and that this neglect was the proximate cause of the damage. It is insisted that the defendant was not connected with this condition; but that point was not fairly presented on the trial, and cannot be raised here in the first instance. The contract of letting was with a firm of agents called Taylor & Co., and throughout the case there is no claim that they were not the agents of the defendant corporation, or Argued November term, 1912, before that such corporation was not shown to be TRENCIIARD, PARKER, and MINTURN, the owner of the property, and we therefore Appeal from District Court of Jersey City. Action by Marcel Le Pichard against the George N. Thurber Company. Judgment for plaintiff, and defendant appeals. Affirmed. JJ. Frank G. Turner, of Jersey City, for appellant. George J. Stillman, of Jersey City, for appellee. MINTURN, J. The state of demand alleges that defendant was a corporation and owner of certain premises, and rented an apartment to plaintiff with steam heat, retaining control over the heating apparatus, except as to the privilege of the tenant to use it or not. Liability is predicated on the theory that the defendant undertook and promised that the premises were in tenantable condition, and that the radiators were in proper condition to turn on the steam, and that it was the duty of the defendant to see that they were in good condition; that one of the radi conclude that the motion to nonsuit was properly denied. The court was asked to strike out a claim for board of the plaintiff and wife while living elsewhere, which motion was granted. It was also urged that under the terms of the hiring of the property no liability to the plaintiff on the part of the defendant can be predicated on the facts of the case. We think the adjudications are entirely to the contrary. Ingwersen v. Rankin, 47 N. J. Law, 18, 54 Am. Rep. 109. See, also, note to 23 L. R. A. 159, concerning defective roof, defective leaders, and leakage from plumbing, and also 29 L. R. A. 358, dealing with electric and gas fixtures. The general principle upon which liability is predicated is dealt with in La Brasca v. Hinchiman, 81 N. J. Law, 367, 79 Atl. 885, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and Broame v. N. J. Conference Ass'n, 83 Atl. 901, and Dreeves v. Schoenberg, 82 N. J. Law, 335, 82 Atl. 530. The state of demand counts on negligence, in that the landlord, being in control of the steam heat, was under a duty to use reasonable care to see that it did not do injury. Battschinger v. Robinson, 85 Atl. 317. It was also insisted that damages for inconvenience suffered could not be allowed, on the ground that they were not proper elements of damage, and were not alleged in the state of demand as such. This objection also applied to allowing damage for loss of occupancy of the rooms. We think these items were clearly proper for consideration by the trial court, in view of the fact that the inconvenience alleged was associated with physical discomfort. Luse v. Jones, 39 N. J. Law, 707; Hale on Dam. 92. The state of demand alleges that plaintiff has been unable to occupy the premises or have the use and enjoyment of the goods and chattels, and has been forced to board and live at another place, and was unable to use said apartment or the said goods and chattels. We think the deprivation of the possession of the rooms where he expected to reside, and of the possession of the goods that belonged to him, were reasonable elements of tort-feasance upon which to base an award of damages. The claim that oral evidence was wrongfully admitted to show representations by the agents, at the time of the letting, when there was a written agreement embodied in the receipt as above quoted, is of no consequence, because the cause of action does not rest upon the agreement made with the agent, but, as we view it, upon the negligence of the landlord in the management of the steam heating plant upon the demised premises, over which he exercised a general control. De Mateo v. Perano, 80 N. J. Law, 439, 78 Atl. 162; Dreeves v. Schoenberg, 82 N. J. Law, 335, 82 Atl. 530. The judgment will be affirmed. (84 N. J. L. 310) the question involved is a purely legal one and [Ed. Note.-For other cases, see Corpora- 3. EMINENT DOMAIN (§ 264*)-CERTIORARI. White, J., dissenting. Error to Supreme Court. Certiorari by the Sisters of Charity of missioners to appraise lands. The Supreme Robert H. McCarter and Kinsley Twining, SWAYZE, J. We agree with the result and the reasoning of the Supreme Court and would add nothing but for the fact that an expression in the opinion seems to have been misunderstood and given a meaning more extensive than is warranted when the opinion is read in view of the facts of the case. [1] The learned judge who spoke for the Supreme Court said that it was settled by that court upon the motion to strike out reasons that the prosecutor (now the appellant) had no right to inquire into the legality of the corporate existence of the defendant. The opinions upon the motion to strike out added that it was enough that the corporation might be such de jure and was such de facto. This was the logical result of the decision of this court in National Docks R. Co. v. Central R. R. Co., 32 N. J. Eq. 755. It was held in that case that the Court of Chancery would not, on a motion for a preliminary injunction to restrain the National Docks Railway Company from constructing its railroad across the Central Railroad Company's land, inquire into the de jure existence of the forThe de facto existence of a corporation mer company as long as it had complied which seeks to condemn land may be inquired with all formal requirements and was a corinto by the owner of such lands on certiorari poration de facto. The decision was put from the proceeding for condemnation. upon the ground that there was no jurisdic[Ed. Note. For other cases, see Corporation in the Court of Chancery to determine tions, Cent. Dig. §§ 77-79, 2504; Dec. Dig. the legality of the existence of such a corpo SISTERS OF CHARITY OF ST. ELIZA- (Court of Errors and Appeals of New Jersey. 1. CORPORATIONS (§ 29*)-RIGHT TO QUESTION CORPORATE EXISTENCE. 29.*] 2. CORPORATIONS (§ 29*)-ATTACKING CORPO-ration. RATE EXISTENCE. The decision is not, however, authority for While quo warranto is the proper proceed- the broad proposition that the court will neving to challenge the legality of a corporation's existence and certiorari to the proceedings to er, upon proceedings to condemn land, incondemn is not an appropriate remedy to oust a quire into the legality of the corporation corporation of its assumed franchises, yet, where that seeks to condemn. We had already de to the very existence of the Tunnel Company, the language of the eminent judge who spoke for this court is significant. There is no doubt that the de facto existence of the corporation may be inquired into at the instance of the owner whose lands it seeks to condemn. To hold otherwise would put it out of the power of the landowner to resist the invasion of his land no matter how clear the usurpation might be. [2] At the same time, certiorari of the proceedings to condemn is not the proper remedy to oust the corporation of its assumed franchises. This was conceded in the Hudson Tunnel R. R. Co. Case. When, however, the inquiry into the right to condemn results in the determination of a question, such as the constitutionality of the act of incorporation or the applicability of the act to the corporation whose existence is challenged, we know of no rule which compels the court to stay its hand because its decision incidentally involves the very right of the corporation to exist. When the question involved is a purely legal question, or when the facts are clear and the inferences to be drawn therefrom are indisputable, no inconvenience can arise from having the court pass upon them. When, however, the facts are questioned or the inferences are disputable, the court ought not upon certiorari to settle either the facts or the inferences. The proceedings should be held until the legality of the corporation can be settled once for all upon an information by the Attorney General. Terhune v. Potts, 47 N. J. Law, 218. The corporation whose existence is challenged is entitled to take the verdict of a jury in quo warranto, and not to be exposed to the hazard of conflict cided that the landowner was entitled to question the right to take his land without his consent (State, Morris & Essex R. R. Co. v. Hudson Tunnel R. R. Co., 38 N. J. Law, 548), notwithstanding a contrary view expressed in the Supreme Court (38 N. J. Law, 17). The right to inquire into the existence of the corporation de facto was conceded in the National Docks Case as it was by the Supreme Court in the present case, and we in fact determined the constitutionality of the General Railroad Law under which the National Docks Company had been organized. This was necessary and proper in order to determine whether it was a corporation de facto, for, if there was no law under which such a corporation could exist, the attempt to build across the Central Railroad property and to condemn the right so to do would be a mere usurpation. The court, however, went further and passed upon the question whether the general railroad law authorized the construction of a railroad lying wholly within one city. Apparently, if the court had construed the act adversely to the National Docks Railroad, it would have retained the injunction. In one sense this inquiry involved only the de facto existence of the railroad, since it might well be said it was an inquiry whether there was any statute under which a railroad of the character of the National Docks Railway could exist; but the inquiry, if determined adversely to the railroad, would determine also its de jure existence. It must often happen that a determination of corporate existence de facto involves necessarily the legal right to exist. In De Camp v. Hibernia Railroad Co., 47 N. J. Law, 43, the Supreme Court considered whether an underground railroad having judgments in condemnation proceedings ing one terminus on private property with- against different landowners. The present out any outlet in that direction, and author- case, like that of the National Docks Railthorized by its charter to carry freight only, way Company, is of this character. The orwas incorporated for a public purpose so ganization of the railroad is regular on its that it might condemn land. In Hampton v. face, the act has been declared constitutionClinton, 65 N. J. Law, 158, 46 Atl. 650, the al, and the proposed railroad is of a characSupreme Court held that a water company ter authorized by the act. Whether its orunder the act of 1876, which had not filed ganization was fraudulent or not depends with its certificate the required consent in upon disputable inferences to be drawn from writing of the corporate authorities of the the facts, and is a question to be decided on municipality, could not condemn land. In P. a quo warranto at the suit of the Attorney & C. Ferry Co. v. Intercity R. R. Co., 73 N. General. It is said, however, that a corporaJ. Law, 86, 62 Atl. 184, the same court con- tion which merely exists de facto cannot exsidered the question whether the railroad ercise the power of eminent domain. The proposed was wholly underground, a circum- logical result, however, of the decision in the stance which, it was argued, would prevent National Docks Railway Company Case, is, incorporation under the general railroad act; as we have said, to the contrary. If the the court held that the fact was otherwise, landowner is not entitled to challenge by inbut did not suggest that the question was not junction the right of a corporation to invade one that could be considered upon certiorari his land, he certainly cannot be entitled to in condemnation proceedings. In the Hudson challenge it when the effort is to acquire his Tunnel R. R. Co. Case, we said that the land- land by paying its value. If the view of the owner asked no affirmative relief, but was New York courts differs, we must be guided purely on the defensive, resisting the claim of by our own decisions, but it is to be observed the defendant to appropriate the land for its that the case cited from New York seems to uses and asking the court to say whether have been one where the failure to comply there was any authority to do so. Although with conditions precedent prevented even a the question involved in that case did not go de facto corporate existence. In re New York Cable Co. v. City of New York, 104 N. [eign to the scope of a bill filed by the trustees to foreclose the mortgage. Y. 1, 10 N. E. 332. [3] That the court, however, may inquire whether an existing corporation is or is not acting in excess of its power, is well settled. Grey v. Greenville & Hudson R. R. Co., 59 N. J. Eq. 372, 46 Atl. 638; Id., 60 N. J. Eq. 154, 46 Atl. 636; Id., 62 N. J. Eq. 772, 48 Atl. 568; Trenton Street Railway Co. v. United N. J. R. R. & Canal Co., 60 N. J. Eq. 500, 46. Atl. 763; De Camp v. Hibernia R. R. Co., 47 N. J. Law, 43; Olmsted v. Proprietors of the Morris Aqueduct, 47 N. J. Law, 311. Upon this point we need add nothing to what has been said by the Supreme Court upon the motion to strike out reasons, 82 N. J. Law, 214, 81 Atl. 817. The judgment is affirmed. WHITE, J., dissenting. (84 N. J. L. 421) TWOMBLEY v. MORRIS R. CO. (Court of Errors and Appeals of New Jersey. April 24, 1913.) [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1329-1333; Dec. Dig. § 455.*1 Action by Samuel Wood and others against the Haddonfield & Camden Turnpike Company and others to foreclose a mortgage. motion to strike out cross-bill. Motion sustained. On George J. Bergen, of Camden, for the motion. E. A. Armstrong, of Newark, opposed. WALKER, Ch. On October 1, 1891, the executed 80 bonds of $500 each, payable to Haddonfield & Camden Turnpike Company bearer in 20 years, with interest. The bonds are all outstanding and unpaid. At the same time the company executed its mortgage to the trustee complainants in trust, conveying certain lands and premises, franchises, etc., to secure the payment of the principal and interest of the bonds. Default having been made in the payment of interest, a bill was filed by the trustees (in which they were joined by two of the bondholders) to foreclose the mortgage. The West Jersey Trac tion Company owns 72, and the Public Serv. Error to Supreme Court. Certiorari by Florence Adele Vanderbilt Twombley against the Morris Railroad Company to reverse an order appointing commissioners to appraise land. The Supreme Courtice Corporation owns 2 of said bonds. All of affirmed the proceedings under review, and prosecutrix brings error. Affirmed. Lindabury, Depue & Faulks, of Newark, for plaintiff in error. Elmer King, of Morristown, and Alan H. Strong, of New Brunswick, for defendant in error. the bondholders are parties to the suit, except an unknown holder of 1 bond. After the making of the mortgage, the defendants, the Traction Company and the Public Service Corporation, acquired interests in the mortgaged premises. They have answered, and by way of cross-bill set up their bond PER CURIAM. The judgment in this case is affirmed for the reasons stated in the opin-holdings, and charge the trustee complainion in Sisters of Charity of St. Elizabeth v. Morris Railroad Company, 86 Atl. 954. WHITE, J., dissenting. (81 N. J. Eq. 239) April WOOD et al. v. HADDONFIELD & ants with dereliction of duty and betrayal of their trust; in fact, as is alleged, they failed to properly resist and defend, and on the contrary gave active counsel and assistance in proceedings instituted by the freeholders of Camden county, whereby the turnCAM-pike, part of the mortgaged premises, claimed to be worth upwards of $100,000, was condemned and taken for a public highway at the greatly depreciated figure of $12,000. This loss of mortgage security is charged against the trustees, and for which they are asked to account. The trustee complainants move to strike out the cross-bill, contending that the complaint set up is not germane to the subject-matter of the original bill, and that if these defendants are entitled to relief, it must be by means of an independent suit. An action in ordinary form by trustees to foreclose a mortgage given to secure bonds is an action in rem, restricted to issues arising between the trustees and subsequent incumbrancers and the holder of the equity of redemption, and is not a final adjustment and settlement of the trust estate between the trustees and the bondholders. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 1144, 1145, 1154; Dec. Dig. § 380.*] 2. MORTGAGES (8 455*) CROSS-BILL-DISCOVERY. FORECLOSURE A cross-bill by bondholders, who are defendants in an action to foreclose a mortgage securing the bonds, which alleges that the trustees under the mortgage have betrayed their trust by assisting in proceedings whereby the mortgaged property was condemned for a public highway at an inadequate price, and asks for discovery and accounting, is for [1, 2] The complainants' bill is in the usual form in foreclosure cases. The action is in rem (Wiltsie on Mortg. Forcl. § 31; Dolman v. Cook, 14 N. J. Eq. 56), operating only upon the mortgaged premises, barring the defendants of their rights in the land by decree and sale, and shifting these rights to the proceeds out of which the complainants and defendants are to be paid in the order of their legal priority. The scope of the proceedings is restricted to the issues arising between | proper execution of the trust; and, although the complainants, representing the bond- it was reversed in Gasquet v. Fidelity Trust holders on the one hand, and subsequent in- & Safety Vault Co., 57 Fed. 80, 6 C. C. A. cumbrancers and the holder of the equity of 253, it will be found that the reversal was redemption on the other, relating exclusively due to a conception, based upon the compreto their respective status in the mortgaged hensive proceedings below, that the bill was lands, and is not comprehensive of a final one for a "final settlement and disposition adjustment and settlement of the trust es- of a trust fund." The doctrine of the case tate, as the defendants contend. In these has not been questioned. It has been cited circumstances, to intrude a demand of the with approval in Stuart v. Hayden, 72 Fed. cestui que trustent for discovery and ac- 402, 18 C. C. A. 618; Kilbourn v. Hirner (C. counting by the trustees, based on malfea- C.) 163 Fed. 539. sance or misfeasance in office, would be most inappropriate. Vice Chancellor Van Fleet, in Krueger v. Ferry, 41 N. J. Eq. 432, 5 Atl. 452, speaking of the office of cross-bill, says: "The new facts which it is proper for a defendant to introduce into a pending litigation, by means of a cross-bill, are such, and such only, as it is necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the complainant rests his right to aid or relief. If a defendant, in filing a cross-bill, attempts to go beyond this, and to introduce new and distinct matter, not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against either the complainant or more of his codefendants, his pleading will not be a cross-bill, but an original bill." or one In Fidelity Trust & Safety Vault Co. v. Mobile St. Ry. Co. (C. C.) 53 Fed. 850, the court, in prescribing the limitations of a cross-bill, adopts the language of the opinion in Stonemetz Printers' Mach. Co. v. Brown Folding Mach. Co. (C. C.) 46 Fed. 851, viz.: "A cross-bill implies a bill brought by a defendant against the plaintiff in the same suit, touching the matter in question in the original bill. It is brought, either to obtain a discovery of facts in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matter charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. If its purpose be different from this it is not a cross-bill, though it may have a connection with the same general subject. A cross-bill must be confined to the subject-matter of the original bill. If it introduces new matter not embraced in the original bill, it becomes itself an original bill." This case was one of mortgage foreclosure by trustees, in which bondholders intervened to recover damages from the trustees for im Haberman v. Kaufer, 60 N. J. Eq. 271, 47 Atl. 48, cited on the brief of the defendants, is readily distinguishable from the case at bar. In that case the complainant sought to defeat bequests as charges upon land of which he claimed to be the equitable owner, by virtue of a contract of sale from the testator, which contract he endeavored to enforce. The legatees answered, denying the contract, and by cross-bill prayed a decree that the land be sold to pay their legacies. Vice Chancellor Grey, in refusing to dismiss the cross-bill, points out this situation to be one in which the cross-bill is proper, viz.: "Where the relief sought by the cross-bill affects the same subject-matter dealt with in the original bill, and the denial of relief to the original complainant will, under the circumstances of the case, be substantially a declaration that the affirmative relief sought by the cross-bill should be adjudged." The defendants' cause for complaint-i. e., that the trustee complainants defaulted in the discharge of their duties, and consequently were liable in damage to their cestui que trustent, which liability is attempted to be enforced by the cross-bill-is foreign to the limited scope of a foreclosure bill to collect the trust fund. The motion to strike out is allowed, with costs. (81 N. J. Eq. 348) SMITH V. COLLINS et al. (Court of Chancery of New Jersey. April 4, 1913.) 1. EXECUTION (§ 171*)-QUASHING-INJUNC TIONS RIGHT TO INJUNCTION. A judgment creditor is entitled to assert the existence of a legal estate in his judgment debtor, and to have his claim of legal title tried execution sale will not be issued in the absence by a legal tribunal, and an injunction against of fraud, gross injustice, or irremediable injury, so that an injunction to prevent the sale of property in which the debtor claimed she sued; a judgment at law not being a lien upon had a mere equitable interest will not be issuch an estate and no title passing under execution sale. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.*] 2. EXECUTION ($ 40*)-JUDGMENT (§ 780*)— PROPERTY SUBJECT-EQUITABLE ESTATES. A judgment at law is not a lien upon a mere equitable estate or interest in lands, consequently such an interest is not the subject •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |