tenants. It is not question of mere acquies- | and improved, during the time limited by the cence; but, in every instance in which the grantor suffers grantees to deviate from the general plan intended for the benefit of all, he deprives others of the right which he had given them to have the general plan enforced for the benefit of all." In Peek v. Matthews, L. R. 3 Eq. Cas. 515, it was said: "The vendor in such cases, stipulating for the benefit of himself and others, as a quasi trustee for them, is bound to enforce the covenant as much against one as against the other." See, also, Ocean City Ass'n v. Headley, 62 N. J. Eq. 322, 50 Atl. 78, and Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153. restriction, for residential purposes, with one dwelling house, for occupation by one family only, on one lot, such dwelling house to set back from the street in accordance with the line established by the restrictions, and to cost at least about $5,000 to build; that, as incidental to this general purpose, there was also a start made to restrict against outbuildings of any character, but that this part of the restriction, where it was imposed, has been modified by mutual acquiescence by the insertion, in place of it, in some of the conveyances, in connection with the dwelling house covenants, of the phrase, “with necessary or desirable outbuildings," and by its violation, in one or more instances, by the erection of a garage on the rear of a lot upon which a dwelling house was constructed in conformity with the dwelling house restriction. We do not think, however, that this modification of this incidental feature is of such a nature as to destroy or impair the mutual benefit to the lot owners of the essential general dwelling house scheme upon the protection of which they relied. So far as the modification of what may be called the incidental "no outhouse scheme" is concerned, of course, defendant's covenant is likewise modified, so that his burden will correspond with his benefit; but, as to the main essential purpose of the neighborhood dwel [3] Turning, now, to the present case, the Vice Chancellor found as a fact that the restrictive covenants contained in the deeds from complainant and her husband for the various lots of this tract which were sold constituted a general or neighborhood scheme; and an examination of the evidence completely confirms this view. There was a plan of the lots, with the streets and avenues laid out thereon, exhibited to the purchasers, who were induced to buy by representations that the value of their proposed improvements would be protected by the fact that restrictions were placed on all lots as sold; and the nature and provisions of these restrictions were explained to them according to the particular section in which they proposed to purchase. It is difficult to see howling house scheme, we think defendant's lot these representations could be made for the purpose of inducing the proposed purchasers to pay higher prices for the lots because of their protected condition, unless it was intended that this protection should inure to the benefit of the purchasers of the lots so protected; and that is the exact test which decides in favor of a general or neighborhood scheme. De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329–338, 24 Atl. 388. It is true that these restrictions varied in different sections in accordance with the designs of the promoters for the character of such sections, respectively; but this does not interfere with the integrity of a neighborhood scheme. Under such circumstances, the covenants applicable to each section become, to a certain extent, a separate scheme for that section; the various covenants on the different sections forming a general scheme for the whole only in so far as all contain features common and beneficial to all. Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369. [2] What, then, was the essential and beneficial neighborhood scheme for the lots on the east side of South Tenth street, between Clinton and Madison avenues, which the purchasers of those lots became protected in their right, to enjoy, and the destruction of which would deprive them of the benefit, in return for which they submit to the reciprocal bur continues to participate in its benefit, and consequently remains subject to its burden. This being the case, the question arises: Does the construction of the defendant's garage, not on the rear of his lot behind a dwelling house constructed thereon in conformity with the covenant, but, instead of that, constructed without any dwelling house on the lot at all, and in the very place fixed by the covenant for the dwelling house to go, fall within the modification of the incidental outhouse covenant, so as to be protected by such modification? We not only think that it does not, but, on the contrary, that it is a violation of the essential and beneficial purpose and effect of the neighborhood dwelling house scheme. This scheme gave each lot owner, who paid a higher price for his lot with that in view and constructed his dwelling house in accordance with the covenant. the right to expect that the improvement upon his neighbor's lot, in close proximity to his own dwelling house and fronting upon an uniform building line, would be a similar dwelling, or one at least of the designated cost. The advantages to him of such an arrangement are too obvious to require discussion. Instead of this, he finds as the neighboring improvement a sheet iron garage building of probably comparatively trifling expense as compared with the cost of the improvement which he had a right to expect, and doubtless of such displeasing ap owner in placing it beside some one else's | should be her natural desire to protect the dwelling house, instead of beside his own. While we entirely agree, therefore, with the view of the Vice Chancellor that there was in this instance a neighborhood scheme, we think he erred in his conclusion that it had been abandoned in such essential features as to justify its violation in the manner in which defendant has violated it. [5] The other principle invoked by the defendant to justify his violation of this covenant is that, by reason of other similar constructions (garages) in alleged similar locations with reference to complainant's remaining property, the violated covenant, in so far as it is violated, has ceased to have any beneficial value to complainant's property, and consequently can form no ground for equitable relief. This principle, if applicable, would also be decisive. The foundation for equitable relief in these cases is that, the first vendor having arranged by the covenant to accept a part of the consideration for his grant in a benefit to accrue to his remaining property by the performance of the covenant, it would be unconscionable to permit the covenantor-vendee's assignee, with notice, to cheat the vendor out of this portion of his consideration by depriving him of the benefit which he would receive by the performance of the covenant. If, however, there was no benefit, or the benefit has ceased to exist, there is no basis for equitable intervention. Thus, in Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679, it was held that a covenant not to dig marl on one tract of land was not a benefit to the use of the adjoining tract (the probable purpose, to prevent competition, being unlawful, because in restraint of trade), and consequently would not be enforced in equity; and in Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365, followed in Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11, and in numerous other cases, it was held that "equity would refuse to enforce a covenant not to devote certain property to business purposes, where there had been such a change in the character of the neighborhood by the building of an elevated railroad and the increase of business houses as to defeat the object and purpose of the agreement and render it inequitable to deprive such owner of the privilege of using his property as its surroundings required." Pomeroy states this principle as follows: "Specific performance, not being an absolute right, the fact that enforcement would be of little or no benefit to the complainant, and a burden upon the defendant, is sufficient to constitute performance oppressive, and it will not be given." 6 Pomeroy, Eq. 1316. The facts in this case, however, fall very far short of bringing it within the operation of this doctrine. It is quite true that complainant, whose interest (aside from what purchasers of her ground in a general scheme of improvements upon which she had induced them to rely) is in the value of the mansion house property directly opposite the lot in question, and in which she lives, and in the value of her other unsold lots, has permitted the erection of garages upon the rear of the lots and back of the dwelling houses which front toward her property on South Tenth street; and, having done so, it would be difficult to see what possible benefit she could have in preventing the defendant from constructing his garage on the rear of his lot and behind a dwelling house built thereon in conformity with the dwelling house restrictions. But this, so far as her property is concerned, situate as it is, is a very different proposition from substituting the probably unsightly outhouse garage instead of and in the exact location of a dwelling house to cost at least $5,000, for which she stipulated. Her benefit, which is invaded by what defendant has done, not only equals, but is even greater than, that of the neighboring lot owners, because, if defendant may lawfully do what he has done.. it can only be because both the dwelling house general scheme and the dwelling house individual covenants have become inoperative; and in that case all the other dwellings constructed on the east side of South Tenth street may be turned into factories, or built out to the street line in the shape of stores, and the entire residential character of the neighborhood, which, by reason of her larger able to complainant than to any one else. remaining interests, is obviously more valumay be completely destroyed. The suggestion has also been made that. because complainant is using as a garage a stable which existed on the mansion house property before any of the lots in the entire tract were laid out and sold, she is not in a position to ask relief in a court of equity against the construction of defendant's gurage. We cannot see the relevancy of this suggestion. This building was in existence at the time complainant sold defendant's lot. and consequently at the time the covenant in question was entered into. reciprocal covenant, either for the removal of this building, or to regulate its use; and its use as a garage does not seem in any way to affect either the beneficial result to the complainant of the performance of the covenant in question in particular, or the integrity and beneficial effect of the neighborhood scheme as established by the covenants in general. There was no For the reasons above stated, the decree of the Court of Chancery is reversed, and the case is remanded to that court, in order that a decree may be entered in accordance with the opinion herein expressed. SEIBERT v. SEIBERT. 1912.) he went there clandestinely. He and Mrs. Seibert went out driving together, visited (Court of Chancery of New Jersey. April 26, saloons together, and some of the witnesses saw them kissing. On March 7, 1910, Mrs. 1. DIVORCE (§ 129*)-ADULTERY-SUFFICIENCY Seibert ordered from Harth's livery stable a OF EVIDENCE. Evidence in a suit by a wife for maintenance, in which defendant filed a cross-bill for divorce, held to show that the wife had committed adultery. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 411-441, 454; Dec. Dig. § 129.*] 2. DIVORCE (§ 129*)-ADULTERY-SUFFICIENCY OF EVIDENCE. Evidence in a suit by a wife for maintenance, in which defendant filed a cross-bill for divorce, held not to show that the defendant had committed adultery. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 411-441, 454; Dec. Dig. § 129.*1 3. DIVORCE (§ 54*)-RECRIMINATION. Bad conduct by a husband other than cruelty and infidelity cannot be set up as a bar to his suit for divorce for adultery. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 190-196; Dec. Dig. § 54.*] Suit by Catharine L. Seibert against Henry F. Seibert for maintenance, in which defendant filed a cross-petition for divorce. Judgment for defendant in the principal suit and on the cross-petition. Ralph E. Lum, of Newark, for complainant. Geo. H. Lambert, of Newark, for de fendant. STEVENS, V. C. This is primarily a bill for maintenance. The defendant defends on the ground of adultery, alleged to have been committed by his wife, and by cross-petition asks for a divorce. The complainant replies by alleging adultery committed by her husband. It may be remarked, at the outset, that I have never tried a case in which so much moral depravity has been exhibited. The case is the more difficult on that account; the evidence of the principal witnesses being open to so much suspicion. The parties, who were married on October 4, 1898, appeared to have lived together in Newark harmoniously until about three years ago. Up to that time their income had been small. On his father's death, in 1908, defendant came into possession of an income exceeding $40,000 a year, which he, not knowing what otherwise to do with, began, with his wife, to waste in riotous living. Mrs. Seibert has since then been three times treated for alcoholism. Mrs. coupé which was driven by a man named Sears. According to this driver, she started from her home shortly after 2 o'clock in the afternoon, took up Woelfle near South Orange avenue, and went, first to Lauchenhauer's saloon, and then to the Old Red Mill. In the evening they ordered Sears to drive to the Continental Hotel in Newark. On their way thither they changed their minds. Seibert asked Sears whether he had a room anywhere. He replied that he had, at 246 South Orange avenue. She asked him whether they could go and stay there for the night. He told her they could. On their way they stopped at Haufler's saloon. Sears procured whisky which he took out to the carriage, and they drove to his room on the opposite side of the street. He showed them up and then, at their request, brought, from the same saloon, more whisky and a bottle of ginger ale. They remained in this room during the night. Sears came for them in the morning and took them for breakfast to the Such is Sears' Old Homestead Brewery. story. If true, it proves the charge made in defendant's answer. It is much too strongly corroborated to dismiss it as the perjured evidence of a man bribed to give false testimony. Sears is a witness of some intelligence. He was, at the time of the occurrence narrated, in the regular employ of Harth. He is now a motorman on a trolley in Schenectady. He is corroborated, First, by an entry on Harth's books as follows: "March 7, 1910, Henry F. Seibert-coupé; black mare Harry; Sears 1:15 p. m. to 5 a. m.-$12.50." Second, by Merz, the bartender at Haufler's saloon, who testified to the drinks taken to the carriage and to the whisky afterwards bought by Sears and taken across the street. He did not see the persons in the carriage. Third, by Mrs. Whipperman, the keeper of the lodging house, who testifies to the condition of the room and bed, and to having seen a woman in furs leave the house in the morning. She says that she tried to see Sears afterwards and tell him that he could not have the room any longer but he did not come back. Fourth, by Dolan, who held the horse while Woelfle [1] I regret that the evidence convinces and Mrs. Seibert got out of the carriage and me that Mrs. Seibert committed adultery with John E. Woelfle on the day charged in the cross-petition, viz., March 8, 1910. Woelfle was a saloon keeper and a boon companion of defendant in his debauches. He is shown by the evidence to be a man utterly devoid of moral sense. He was, until July, 1910, when Woelfle and defendant quarreled, a constant visitor at Seibert's house, at Seibert's invitation; after that time who recognized her because he had driven for Harth, whose carriages the Seiberts were in the habit of using. Fifth, by Mrs. Schmidt, who, from a saloon across the street kept by her husband, saw a man and a woman come out of the house in the morning. She identified Woelfle as the man but did not know Mrs. Seibert. She says, however, that Sears came over to her husband's saloon and told the men there that he was waiting for them and that the men were all April that the adultery was committed with watching for Mrs. Seibert to come out. Sixth, Myrtle Miller. These discrepancies, ordinariby Winter, who says that on the only morn-ly of slight importance, are deserving, in this ing Woelfile, whom he knows, was ever in the Old Homestead during the period of his employment, he was accompanied by a lady to whom he served something to eat and drink. He does not identify Mrs. Seibert as the woman, and his evidence, standing by itself, would be of little value. Mrs. Seibert seeks to meet this body of evidence with an alibi. She and her niece, Mrs. Finn, say that on the afternoon and evening in question they were shopping and attending the theater. They do not remember the play, and, as to the shopping, all that they testify to could as well have happened on any other day. While some weight is to be given to the testimony of Mrs. Finn, who appears to be an intelligent and conscientious witness, I do not think it throws any real doubt over the narration of Sears, fortified as it is by so many independent witnesses, and, I am sorry to say, so probable in itself. The same remark applies to Mrs. Woelfle's testimony, The subsequent conduct of Woelfle and Mrs. Seibert supports the story and proves, as it seems to me, an illicit connection. The crosspetition does not charge adultery committed at the Hotel Rudolph in the following November, but the inference of it is hard to avoid. Woelfle there went under an assumed name, and both he and Mrs. Seibert admit that for two successive nights they occupied the same bedroom; the trained nurse who accompanied her being in the adjoining room. Mrs. Seibert was then in full possession of her senses; she did not, through excessive drinking, become unconscious till a day or two afterwards. One would have supposed that the proper place for the nurse would have been in Mrs. Seibert's room, and that Woelfle, if merely a friend and assistant, would have been in the room occupied by the nurse. [2] A more difficult problem is presented when we come to deal with the charge against Mr. Seibert. That charge is that on March 17, 1910, and on other days of said month, he committed adultery with one Myrtle Miller at the Hotel Denville, No. 207 West Fortieth street, New York City; and "at other places unknown to complainant and at divers other times subsequently thereto." This charge was an afterthought, not having been made in the original answer to the cross-petition filed on June 29, 1911. The supplemental answer making the charge was not filed until November 22, 1911, the first day of the hearing. The charge that adultery was committed on March 17th is disproved. Indeed, Woelfie, from whom the information upon which it was based must have been derived, does not pretend that it was committed on that day. He vaguely says, in his testimony, that it was committed with a stout woman, whose name he does not know, in the latter part of March, and that it was in | particular case, of some attention. Proof of the adultery committed in March rests exclusively upon the testimony of Woelfle; proof of that committed in April, upon the evidence of Woelfle and a girl named Margaret Lee. Woelfle's testimony as to the alleged occurrence in March is that in the latter part of that month he (Seibert) and the chauffeur, a man named Cisco, drove to New York, in Seibert's car, and proceeded to the German Village, a drinking place and resort of prostitutes, but not a bedhouse; that, after getting drinks and selecting three girls, they proceeded to the Hotel Denver (not Denville as charged in the answer) and there obtained rooms which they occupied for about threequarters of an hour, and then returned to Newark. He cannot identify the girl with whom he says Seibert roomed except by describing her as a stout girl. This is the only evidence of the occurrence. It is given by a man without morals, without character, and entirely unworthy of belief. If the case rested here, there would be no difficulty in dismissing it, denied as it is by Seibert and Cisco, on the ground that judgment of guilt could not be safely rested upon such testimony. The other occurrence is testified to, not only by Woelfle, but also by Margaret Lee. Woelfle's account is as follows: "About the 10th of April we (Seibert, Cisco, and Woelfle) went over to the German Village, met this Miss Miller (the girl that he says Cisco had had on the previous occasion) and a new girl who was introduced to Cisco. I think," he says, "her name was Alice. I had a girl by the name of Elsie Brown. Mr. Seibert took Miss Miller, the girl that Cisco had the week before, and we all went to the rooms together again. We were there about half an hour, the same as before. register for Mr. Seibert. 'put me down Lowenstein.' my name Einstein. I can't recollect what I made for Cisco." He reiterates this account on cross-examination and gives no further particulars. I had to He says, I made Margaret Lee's account is as follows: "We met the party in April (about the 10th I should judge) in Delawanna (a village between Nutley and Passaic) at a roadhouse kept by one Foley. We went out for a ride. There was Mr. Cisco, Mr. Seibert, Mr. Woelfle, Mr. Foley, and some other gentleman, and myself. [She had never seen the other gentleman before and did not remember his name.] From Delawanna we went to Boonton. We had a drink. From Boonton we went to some other roadhouse, I couldn't just tell where it is, called Jack Garrabrandt's. From there we went to Paterson to the French restaurant and had dinner, then back to Delawanna, and from Delawanna to New York. We arrived at New York between half past nine and ten at night, and went to the German Village. Were there about half an hour or threequarters of an hour. We went in-our party -we had a few drinks; well I won't say a few, we had two drinks. There was three young girls going out and the gentlemen spoke to them, and the young ladies told them they could not sit down at the table unless they got up and walked to the door with them and came back, which they did, all excepting Mr. Seibert and Mr. Foley and I. We sat there. The young ladies came back. There was some fellow going through selling flowers and Mr. Seibert asked us if we would have some, so we said, 'Yes.' He bought the young ladies violets, and I said I would like to have a bunch of violets, and he wouldn't allow me to take them. He said if they had violets, I should have better, and he bought me a bunch of roses. After that they suggested going to the hotel, so we got up and went out, Mr. Seibert and the girl he was with, Mr. Foley, and I. We went to the hotel together-the Denver on Fortieth street, right off Seventh avenue, I believe it is. We went down there, and we all went in through the hotel into the parlor on the right hand side, going in the door. So we had one drink there, and Mr. Seibert, Mr. Cisco, and Mr. Woelfle, and the other gentleman left Mr. Foley and I sitting in the ladies' room, the ladies' parlor, and we went back to the German Village and had a drink. We had one drink there and came back, and the parties were not downstairs yet, so we sat in the machine and waited * * 串 about three-quarters of an hour. They came down. I didn't see the girls after that. The gentlemen got in the car and we drove off; drove back to Delawanna." On cross-examination she says that she had had "perhaps as many as 20 drinks" that day; that she did not remember who, besides herself and Foley, walked from the German Village to the hotel Denver, thought it was Woelfle (on her direct examination she said Seibert); that she did not see the girls come out of the hotel, and was uncertain whether there were three or four; that on their way home they stopped at a roadhouse on the boulevard and reached Foley's at Delawanna “around one or half past one o'clock in the morning," where she stayed all night. The account of the trip, given by Margaret Lee, has at least verisimilitude because of its circumstantiality. It is denied by Seibert and Cisco, but, if believed, Seibert must be held to be guilty. Is this girl, then, a credible witness? There is no presumption of innocence arising from Seibert's manner of life. While he denies that he made the trip in question, he admits that he has "once or twice" visited the German Village. He is a frequenter of saloons and races; has been ment. He is, notwithstanding, not to be adjudged guilty against his own and Cisco's denial, unless the crime be proved by credible witnesses. I was at first inclined to give weight to the account of Margaret Lee, but her story is attended with several peculiarities. In the first place, she was not called until after the complainant's case, on the issue in question, had been put in, and until it must have been seen that it could not prevail on Woelfle's evidence alone. How did she happen to be at Foley's, a roadhouse distant from her residence, on the Sunday in question? And why was she, an entire stranger, invited to go on the ride? This is not explained. Taking Margaret's account of herself, she leads, if not an immoral, at least a questionable, life. She admits that she frequents saloons and has, on three occasions, visited the German Village. In her direct evidence she said she was employed in a silkmill in Paterson, but on cross-examination she testified that she had not been working for two weeks. She does not appear to have any visible means of livelihood outside of her work. The mode in which her attendance was procured is a little suspicious. She says she received a subpœna in an envelope that contained no witness fee; that she came to Newark from Paterson and was met at the street door of the Prudential Building by Woelfle. On her cross-examination she first said that Woelfie was waiting for her, but further on she said he was not. She said that he asked her to come up and testify "about that ride at the time we were out; that they were denying it," and she further said that she had never at any time talked to any one about the occurrence except the woman she boarded with. How her address was discovered does not appear. As the evidence stands, we must infer that it was Woelfle who communicated to counsel the fact that she knew about the matter. But Woelfle does not seem to have given any information about her in connection with this particular occurrence or about the occurrence itself, even at the time when the supplemental answer to the cross-petition was filed, for no mention is therein made of any act of adultery committed on April 10th, although it was later in time and more noteworthy and more likely to be remembered than that actually mentioned in the pleading as occurring on March 17th. It is a singular fact that, although Woelfle must have known from the beginning that Margaret was one of the party and would have strongly corroborated him, he does not mention her name in his evidence when he testifies to the ride of April 10th. They agree upon the day (April 10th, which the almanac shows to be Sunday), but Woelfle, in his evidence, fails to state any one of the circumstances which make the Lee account appear probable. He does not mention the trip to Delawanna, or Margaret's or Foley's |