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C. obtained of G. C. certain glass upon fraudulent representations as to his financial condition. G. C. rescinded the contract, and brought his action of replevin against B., who had purchased the glass under a sheriff's sale on a judgment entered by default against C. in favor of B. The judgment was founded upon promissory notes made by C. to B. for an indebtedness incurred before the sale, and alleged to have been for the labor and services of B. to C., and for money loaned by B. to C. Held:

1. That a representative of Dun's Commercial Agency could testify to the statements made to him by C., and which had been communicated to G. C., through the agency, prior to the sale to C.

2. That it was permissible to prove judgments of record against C. at the time of the purchase of G. C. to establish the falsity of his statements to G. C. as to his solvency.

3. That B. having testified on his direct examination to the recovery of his judgment against C., and to the bill of sale given to him by the sheriff for the glass after the alleged sale under the execution issued upon the judgment of B. against C., it was permissible upon the cross-examination of B. to inquire into his whole conduct as to the judgment, the sale, and the debt for which the notes were given. This was not an attack upon the judgment collaterally. It was admissible to lay bare the whole plan or scheme of C. and B. to cheat G. C. out of his property.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County. Action by George Cowen against Samuel Bloomberg. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, PITNEY, and FORT, JJ.

James F. Minturn, for plaintiff in error. McBurney & McBurney, for defendant in

error.

FORT, J. There are several exceptions in the record upon which error has been assigned, but most of them are without substance and need no consideration.

This is an action of repleviņ, in which the plaintiff declares for certain glass, itemizing it. The defendant pleads three pleas: (1) He did not take the glass; (2) that Casper purchased the glass of the plaintiff, and had possession thereof for his own use, and that afterwards the defendant recovered a judgment in the Hudson circuit court against Casper, and the sheriff sold the glass under that judgment to the defendant, giving him a bill of sale therefor; (3) that the glass was not the glass of the plaintiff at the time

of issuing the writ of replevin. The plaintiff replies, alleging fraud in the purchase by Casper, and knowledge thereof in the defendant; that plaintiff rescinded the contract as soon as he discovered the fraud; that the judgment of the defendant against Casper, under which the glass was sold, was one obtained by collusion after knowledge by the defendant of the fraud and rescission; that both Casper and the defendant knew of Casper's insolvency when the goods were purchased.

To prove the fraudulent representations of Casper in the purchase, the court permitted evidence of the statements of Casper made to a representative of the Dun Commercial Agency just before the time of the sale of the glass by plaintiff to him. This evidence, as offered, was undoubtedly competent. It was not an attempt to offer a report made to the agency, as in Cowen v. Bloomberg, 66 N. J. Law, 385, 49 Atl. 451, but it was proof of the declaration of Casper by the man to whom they had been made.

Another assignment was that the records of judgments entered against Casper prior to the time of the sale were improperly admitted in evidence. We think these judgments were admissible after the proof of Casper's representations as to his financial condition, which were at variance with the fact of the existence of the judgments. Wilson v. White, 80 N. C. 280.

The defendant was a witness, and upon cross-examination he was asked about the good faith of his judgment against Casper. This was objected to as impeaching the judgment in a collateral proceeding. On the direct examination the defendant had testified to securing the judgment, and the sale under it, and the bill of sale from the sheriff, The cross-examination was proper. The allegation of the replication was fraud. The whole conduct of the defendant was open to inquiry after he justified under the sheriff's sale. It was a part of the facts and circumstances from which the jury might determine whether the defendant was in conspiracy with Casper, and not only familiar with the fraud of Casper in the purchase, but was engaged with Casper in a further attempt at defrauding the plaintiff by conspiracy with him to obtain a fraudulent judgment against Casper, and a fraudulent sale thereunder, to cheat the plaintiff out of his property. cross-examination was not an attack upon the judgment collaterally. It was the developing of the whole plan or scheme of fraud between Casper and the defendant to cheat the plaintiff. Shinn on Replevin, § 465, note at page 429.

This

We think, also, that the court rightly refused to direct a verdict for the defendant because the evidence of identification of the glass replevied, as the glass of the plaintiff, was insufficient. The second plea of the defendant admitted the glass in the plaintiff's declaration to have been purchased by Casper

from the plaintiff. There was also evidence of identification, which made it a question for the jury.

There is no error, and the judgment of the Hudson county circuit court is affirmed.

(69 N. J. L. 575)

MCDERMOTT v. SINKING FUND COM'RS OF JERSEY CITY.

(Supreme Court of New Jersey. June 9, 1903.) MUNICIPAL CORPORATION-SINKING FUNDCANCELLATION OF CITY BONDS.

1. The "sinking fund of 1873" of Jersey City is not pledged to the redemption of any specific bonds, and the sinking fund commissioners of Jersey City have power, under the act of 1895 (P. L. 1895, p. 69), to cancel bonds of the city held in that fund.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Walter L. McDermott, against the sinking fund commissioners of Jersey City, to review a resolution. Resolution affirmed.

Argued February term, 1903, before DIXON, GARRISON, and SWAYZE, JJ. Allan L. McDermott, for prosecutor. George L. Record, for defendants.

SWAYZE, J. The object of this proceeding is to set aside a resolution of the sinking fund commissioners of Jersey City canceling bonds of the city held by the commissioners. The bonds canceled amount to $68,064.42. The resolution was passed November 18, 1902. Prior to that date all of the bonds, except one for $2,500, had been held by the commissioners for certain sinking funds, which were especially appropriated to the ultimate redemption of specific issues of bonds, and known by several different names. Upon that date the commissioners had in a fund known as the "Sinking Fund of 1873" securitles of the par value of $2,500, and cash to the amount of $68,332.64. Sixty thousand dollars of the cash came from fees for liquor licenses received by the city after July 1, 1902, and appropriated to the sinking fund of 1873 by a resolution of the board of finance adopted July 25, 1902. On November 18, 1902, the sinking fund commissioners first passed a series of resolutions for the purchase for the sinking fund of 1873 of the bonds in question from the sinking funds for which the bonds were then held. The effect was to transfer the cash to the other sinking funds, and to transfer the bonds to the sinking fund of 1873. At the same time they bought the $2,500 bond of a private corporation. Thereupon the commissioners passed the resolution removed by the writ of certiorari, canceling these bonds. In substance, the action complained of was the payment of these bonds, to the extent of $60,000, out of the money derived from license fees, and, to the extent of $8,000, out of other assets of the sinking fund of 1873. Some of the canceled bonds had been issued to procure money for the ordinary expenses

of the city. Some had been authorized by statutes which provided for the payment of the bonds by money raised in the next tax levy. All had been issued under different statutes, which, in different language, required the bonds authorized thereby to be paid by taxation.

It is contended on the part of the prosecutor that the action of the sinking fund commissioners is, in effect, a payment of current expenses out of bonds, instead of the annual tax levy, and is an evasion of the statutes requiring bonds to be met by taxation. The action of the sinking fund commissioners now questioned is the cancellation only. Their right to transfer these bonds from the other sinking funds in return for the cash is not questioned.

As to the contention that the bonds should have been met by taxation, it was no part of the duty of the sinking fund commissioners to make up the tax levy. That duty devolved upon another body. If the board of finance, in fixing the appropriations for the fiscal year, ought to have appropriated $68,000 more for the payment of bonds than they actually appropriated, their action cannot be reviewed in this proceeding.

It is difficult to see how the prosecutor, a taxpayer of Jersey City, is injured by the action of the sinking fund commissioners. He is no worse off by having the bonds canceled than he would be by having them uncanceled. If he is injured at all, it is by the failure of the municipal authorities to raise as much by taxation as they should raise, with a view to the redemption of bonds at maturity; but this failure of the municipal authorities is not the result of any act or neglect of the commissioners, and would not be remedied by setting aside the resolution now drawn in question. The prosecutor is not a bondholder complaining of a misuse of the funds held in trust for the ultimate payment of his bonds. What the prosecutor complains of is substantially the administration of city affairs by boards other than the sinking fund commissioners, and the object of this proceeding is indirectly to compel the other boards to do what the prosecutor claims is their statutory duty.

We think that the act of 1895 (P. L. 1895, p. 69; Gen. St. p. 716, § 1232) authorized the action taken. The act authorizes the sinking fund commissioners in a city whose municipal debt exceeds 15 per cent. of the assessed valuation of real and personal property "to cancel all bonds that have been or may hereafter be purchased by them for the redemption of the debts of such city, notwithstanding such bonds may not be by their terms due and payable at the time of such purchase." This act is attacked because it is said to violate the constitutional provision against laws impairing the obligation of contracts. The answer to this argument is that no contract appears to be impaired. The sinking fund of 1873 is not pledged to the

redemption of any particular bonds. The sinking fund of 1873 was created by a supplement to the city charter approved March 24, 1873 (Sp. Pub. Laws 1873, p. 402). It appropriates certain receipts to the "sinking fund of Jersey City," and provides "that said sinking fund shall be used exclusively to satisfy bonds of Jersey City." We think it is so used when bonds are bought as in this case, and canceled before maturity. It is true that there are yet outstanding $550,000 of city bonds issued prior to 1873, but it is not even contended that the sinking fund of 1873 is limited to the redemption of that debt. The argument is that the sinking fund cannot be used to pay bonds issued under acts directing that they shall be paid by insertion of the amounts in annual tax levies. We see no reason why the powers of the sinking fund commissioners should be denied merely because other municipal authorities are required to provide means of payment. The object of the sinking fund is to discharge the city debt, and it can make no difference what debt is discharged, provided the bonds canceled have not been pledged for the payment of other bonds.

The resolution should be affirmed, with costs.

HAINES et al. v. EINWACHTER et al. (Court of Chancery of New Jersey. June 8, 1903.)

DEEDS-RESTRICTIONS-CITY LOTS-ENFORCEMENT-GENERAL PLAN OF IMPROVEMENT-DEFENSES-PLEADING.,

1. Where restrictions as to the use of certain lots when conveyed by the owner to several grantees were not part of a general plan of improvement, but were imposed on each lot separately as sold, it was no defense to a suit to enforce restrictions against one of the lots that the grantor had waived the same by permitting grantees of other lots to disregard them.

2. In a suit to enforce restrictions in a deed to a certain city lot, the fact that the grantor imposed the same restrictions on a number of other lots was not of itself sufficient to show a general plan of improvement, to which such restrictions related.

3. In a suit to restrain the use of a lot for the sale of intoxicating liquors in violation of a restriction in the deed, defenses that the restriction should not be enforced, by reason of a change in the character of the neighborhood, and that defendant had been permitted to go to expense to change his property to use the same for the sale of liquor without objection, could not be considered, where they were not pleaded, and were raised for the first time at the argument.

4. Where the restrictions in a deed were not imposed in pursuance of a general plan for improving severa! lots, a subsequent grantee of an adjoining lot is not entitled to enforce them.

Suit by Mary T. Haines and John F. Starr against Ellen Einwachter and another. Decree in favor of plaintiff Starr.

E. H. Chandler, for complainants. G. A. Bourgeois, for defendants.

14. See Deeds, vol. 16, Cent. Dig. § 543.

GREY, V. C. The bill is filed to enforce restrictions imposed by the complainant John F. Starr upon a certain lot of land on the west side of Virginia avenue, in Atlantic City, in a deed made by him on the 30th day of December, 1887, to one Solomon Sternberger, and recorded in Atlantic county clerk's office in Book 1234 of Deeds, folio 93, etc. The restrictions are recited in that deed as follows: "Under and subject to the restriction that no slaughterhouse, bone-boiling establishment or fat-rendering establishment or livery stable, shall hereafter be erected thereon, nor shall any building be erected on said premises within thirty feet of the front line of said lot, nor more than one house erected thereon, nor shall any spirituous, vinous or malt liquors be manufactured or sold upon said premises." By various intermediate conveyances this lot has been conveyed to the defendant Ellen Einwachter, who is now its owner. A hotel or boarding house called the "Belmont" has been built on the lot. This property Mrs. Einwachter has leased to the defendant Edwin S. Watson, who presently occupied it. The complainant Starr, by another deed, dated the 14th day of December, 1897, recorded in Book No. 122 of Deeds, p. 150, conveyed another lot on the same side of Virginia avenue to one Charles F. Wahl, the title in which by intermediate conveyances has come to the complainant Mary T. Haines. The deed from Starr to Wahl also contained the restrictions above recited. The breaches alleged are that the defendant Watson has obtained a license for the sale of liquor on the lot leased to him, and has opened a bar, and intends to conduct on the premises a business in selling spirituous and other liquors, and, at the time when the bill was filed, was constructing a barroom within 15 feet of the front line of the lot in question. The bill prays that the defendants may be restrained from building the barroom or other structure within 30 feet of the front line of their lot, and from selling spirituous or other liquors on the premises described in their deed, and for further relief, etc.

The defenses set up in the pleadings are that the complainant Starr has abandoned and waived the restrictions by permitting numerous buildings to be built within 30 feet of the line of Virginia avenue on lots on which he had imposed the restrictions in question, and that he and his grantees have acquiesced in the building thereof; that he abandoned the restrictions against the sale of liquor at the Jackson House, another property on the same street, and had consented to the sale of liquor there. This defense misconceives the nature of the restrictions set up in the bill and shown by the proofs. There is neither allegation in the bill, nor proof in the testimony, that Mr. Starr imposed these restrictions as part of a general plan of improvement, whereby each grantee of a lot became interested in

them, and Mr. Starr became correspondingly bound to impose them upon all the lots within the plan. In this case each grantee accepted his deed with the particular restrictions therein recited, imposed upon the lot thereby conveyed. Nothing shows that Mr. Starr agreed, expressly or impliedly, to impose like restrictions upon other adjoining or neighboring lots which he might sell. In truth, he varied or omitted the restrictions in several cases, and apparently dealt with each lot as a separate and unrelated property. The fact that he imposed the same restrictions upon a number of lots is not sufficient, of itself, without other allegation or proof, to show that there was any general plan of improvement to which these restrictions related. It is, therefore, no answer to this suit to enforce the restrictions imposed upon the defendants' lot that they should say that Mr. Starr has waived the enforcement of, or omitted to impose, like restrictions elsewhere.

On the hearing, the defendants also claimed that, since the restrictions above cited were imposed, the character of the neighborhood has changed from cottage uses to hotel uses, and that this justifies the breach of the covenant under which the land was purchased; that the defendant Watson openly and publicly applied for his liquor license, and spent money in changing the premises in order that the sale of liquor might conveniently be carried on there, without opposition or notice that the restriction would be enforced. Neither of these defenses was set up in the defendants' answer, and therefore ought not to be considered on argument. If it be assumed that they were well and forcefully pleaded, they are not sustained by the proofs.

The case appears to stand substantially in the same position as that of Evans and Starr v. Phoebus (decided in April, 1902, by Vice Chancellor Reed, but not reported), in which a covenant of like character was sustained and enforced. In that case the complainant Evans was not shown to be in privity with the complainant Starr, because of the adoption of a general plan for improving the property dealt with, and the bill was dismissed as to her. In this case the same result follows as to the complainant Haines. She has no status to enforce the covenant imposed by Mr. Starr. The latter only is entitled to relief.

A decree will be advised in accordance with the views above expressed.

(69 N. J. L. 587)

ALLISON LAND CO. v. MAYOR, ETC., OF
BOROUGH OF TENAFLY.
(Supreme Court of New Jersey. June 8, 1903.)
MUNICIPAL CORPORATIONS-STREET IMPROVE-

MENTS-ASSESSMENT OF BENEFITS.

1. The borough act (P. L. 1898, p. 399), as amended (P. L. 1899, p. 171), confers the

power to assess benefits for street improvements upon lands not upon the line of the street that is improved. (Syllabus by the Court.)

On rehearing. Affirmed.

For former opinion, see 52 Atl. 231.

This cause was heard on the original argument at the February term, 1902, upon the reasons filed therein, and a decision was rendered setting aside the assessment brought up by the writ. The certiorari was brought to review an assessment made by the borough of Tenafly for the improvement of Clinton avenue, in the said borough, upon lands belonging to the Allison Land Company which do not front upon the avenue.

The opinion of this court was that the assessment should be set aside, upon grounds, however, that could be cured by reassessment. 52 Atl. 231. The prosecutor, not desiring to put the defendant to the expense of making a reassessment, has requested a decision upon the main question in the case, viz., the power to assess lands that do not front upon the street improved.

The following stipulation was thereupon made: "It is hereby stipulated by and between the parties hereto that we join in an application to the Supreme Court for permission to resubmit and reargue the aboveentitled action upon the following conditions and stipulations, which are hereby agreed upon and consented to: That the report of the commissioners of assessment be amended by inserting at the end of said report the following: "That we, the commissioners of assessment, do further certify that the assessments made herein do not exceed the actual benefits received from the said improvement. The lands assessed for this improvement are severally and respectively benefited by said improvement to the full amount of the assessment.' That the return to the writ be amended by adding to the copy of the report of the commissioners of assessment the same amendment as made above (page 23 of printed case). That the reasons filed herein be all struck out, with the exception of the first and second reasons (pages 7 and 8 of the printed case), and that the case be presented and argued upon those reasons alone, and that in case of the affirmation of the assessment no interest or costs shall be charged or allowed as against the plaintiff or defendant, and that a rule for reargument may be entered in said cause. Attorney for prosecutor, William M. Seufert. Attorney for defendant, Edmund W. Wakelee."

On the above stipulation the following rule was entered: "It appearing to the court that the above-entitled action was argued at the February, 1902, term of this court, and a decision therein rendered, but that no judgment has been entered herein, and that the return made by the defendant herein has been amended by a stipulation filed herein, it is on this second day of February, 1903, ordered that the parties hereto have leave

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The declaration alleges that after the giving of the notice, and before the suit was instituted, the plaintiff established his debt as claimed in the notice, by obtaining a judgment thereon against the contractor.

The defendant's sixth plea is, in part, as follows: "And for a further plea in this behalf, by leave of the court for this purpose first had and obtained, defendant says that at the time of the alleged demand made by the plaintiff on the said Crammer, and that at the time of the alleged demand made by the plaintiff on this defendant, there was due from said Crammer to said plaintiff a sum less than one thousand dollars, the amount claimed in said notice and demand, to the knowledge of this defendant." This is a sufficient recital from the plea. The plea contains other matters which are mere surplusage and might have been omitted, and concludes with a verification and prayer for judgment. To this plea the plaintiff demurs. The demurrer cannot be sustained. The contention of the plaintiff, on the brief,

(Supreme Court of New Jersey. June 8, 1903.) that because he has set out in his declaration

MECHANIC'S LIEN-ENFORCEMENT-DEFENSES -PLEA-RES JUDICATA-AMOUNT OF CLAIM.

1. An owner sued by a workman or materialman on a notice and demand of payment, under the third section of the mechanics' lien law (Gen. St. p. 2073), may plead that there was due at the time of the service of the notice by the claimant "a sum less than the amount claimed in said notice and demand." Such a plea is not demurrable.

2. The fact that the declaration recites that after the notice and demand, and before commencing the suit, the claimant had obtained a judgment against the contractor for the amount claimed, does not defeat such a plea. Such a statement in the declaration is surplusage, being merely a statement of the plaintiff's evidence.

3. A judgment by a claimant against the contractor is not conclusive upon the owner. It may be offered as evidence of the amount due, but it will not prevent the owner from showing the truth to be that the claim made is knowingly excessive, to the knowledge of the claimant.

4. The conclusion here reached we think to be in conformity with the principles declared in Reeve v. Elmendorf, 38 N. J. Law, 125, and Camden Ironworks v. City of Camden (N. J. Err. & App.) 52 Atl. 477.

(Syllabus by the Court.)

Action by Samuel C. Taylor against William F. Wahl. Demurrer to plea. Overruled.

Argued February term, 1902, before the CHIEF JUSTICE, and HENDRICKSON, PITNEY, and FORT, JJ.

that, before suit brought, he had obtained Judgment against the contractor for the amount stated in his notice, and hence, under Reeve v. Elmendorf, 38 N. J. Law, 125, his claim is conclusive upon the defendant, is not sustainable. Whatever force this judgment may have as evidence in the cause, it is unnecessary to here discuss. It was not necessary to recite it in the declaration, and it is a mere statement of evidence therein. The sixth plea avers that, at the time the demand was made by the plaintiff upon the defendant by the notice set out in the declaration, "there was due from the said contractor to the said plaintiff a sum less than one thousand dollars, the amount claimed in said notice and demand, to the knowledge of this defendant." The demurrer admits this statement, viz., that there was due to the plaintiff "a sum less than one thousand dollars, the amount claimed in the notice," etc. That admission is fatal. If there was less due the plaintiff than his notice called for, his whole claim falls. He makes an excessive claim at his peril. The owner is not liable to answer for any amount, where the claimant seeks to impound more money than is actually due him. Chief Justice Beasley, in Reeve v. Elmendorf, supra, says: "In view of the just rights of the contractor, as the owner is obliged to be satisfied of the

G. A. Bourgeois, for plaintiff. Thompson correctness of the claim of the materialman & Cole, for defendant.

FORT, J. This was a suit upon a notice given under the third section of the mechanics' lien act (Gen. St. p. 2073). The defendant is the owner of premises being erected under contract. The declaration recites the service of the notice, and alleges that there was due to the contractor by the defendant, the owner, upon the contract, money in excess of the amount demanded by the notice.

or workman before he pays it, it follows that neither of the latter can sue the owner, without first establishing, to the exclusion of all reasonable doubt, the justness of his claim. * But so long as an honestwhich is the same thing as a reasonabledissatisfaction exists on the part of the owner with respect to the fairness of the debt claimed, he is not suable under this clause." For the plaintiff to admit, as the demurrer does, that his notice to the owner, the de

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