petition on the 18th day of November, 1916, from one of the counsel of Mr. Scully. It does not appear that any injury resulted to the prosecutor by reason of the failure to have a copy of the petition earlier. [7] The next point urged is that the petition is insufficient to warrant an order for a recount. An examination of the petition shows that it sets out all the facts required by section 159 to constitute the basis of an order for a recount. The cases cited by counsel for the prosecutor in support of his contention deal with contested election cases, and are not applicable to petitions for a recount. In Kearns v. Edwards, 28 Atl. 723, there was an order for a recount, made ex parte by Depue, J., with leave to the candidate interested to apply to set it aside. Upon the argument it was objected that the petition stated no facts upon which the petition was filed that an error has been made in counting the votes. The petition was held to be sufficient. [8] Lastly it is objected that the petition is not properly verified. The precise objection relied on is that the petitioner's affidavit as to the facts set out in his petition relating to acts not his own is made on belief only. This objection appears to be fully answered by what was said by Dixon, J., in Johnson v. Allen, 55 N. J. Law, 400, 401, 27 Atl. 1014, a contested election case. The learned justice said: "If the statute had prescribed verification by the oath of the contestant himself, as in Kirk v. Rhoads, 46 Cal. 398, it might fairly be urged that it was enough for him to swear to the best of his knowledge, information and belief, because, except in rare instances, he would be able to swear to nothing more, and it could not be supposed that the Legislature had in view only such rare instances." It is to be observed in this connection that section 159 makes no provision as to the manner in which an application for a recount shall be presented, nor does it require a verification of the facts upon which the application for a recount is made. fluence, exists where one by an unlawful act of the beneficiary or his authorized agent, or by the act of some person with his knowledge, is conof the exercise of free will, to agree to, or to strained under circumstances which deprive him perform, the act sought to be avoided. [Ed. Note.-For other cases, see Contracts, First and Second Series, Duress.] The collection of taxes through threats by the authorities of a municipality to which they owner's right to redeem will be barred or foreare owing, that unless the sum due is paid, the closed, does not amount to unlawful coercion, and is not duress. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1002; Dec. Dig. 541.] 4. TAXATION 542 RECOVERY OF TAXES PAID-VOLUNTARY PAYMENT. ly because the payer at the time makes a protest Payment is not rendered involuntary mereagainst the payment, and if money is paid under compulsion no protest is necessary to lay the foundation of an action to recover it; but, was voluntary, the protest may be taken into ac if there be doubt as to whether the payment count in determining that question. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1003-1005; Dec. Dig. ~542.] 5. PAYMENT 82(1)-RECOVERY OF PAYMENT -VOLUNTARY PAYMENT. A voluntary payment cannot be recovered by the payer. [Ed. Note.-For other cases, see Payment, Cent. Dig. 88 254, 258, 259, 261, 265; Dec. Dig. 82(1).] Bergen, White, and Williams, JJ., dissenting. Appeal from Supreme Court. Action by Jessie Koewing against the Town of West Orange. From an order striking out the complaint, plaintiff appeals. Affirmed. Edwin T. Murdoch, of New York City, for appellant. Simeon H. Rollinson, of Orange, and Borden D. Whiting, of Newark, for appellee. WALKER, Ch. Action was brought in The writ will be dismissed, without costs. the Supreme Court by Mrs. Koewing against (89 N. J. Law, 539) KOEWING v. TOWN OF WEST ORANGE. (Court of Errors and Appeals of New Jersey. Nov. 20, 1916.) (Syllabus by the Court.) 1. PLEADING 360(1)-MOTION TO STRIKE ADMISSIONS. A motion to strike out a complaint under Practice Act 1912 (P. L. p. 377), for want of showing cause for action, is the equivalent of a demurrer in the former practice, and only admits facts well pleaded, and not conclusions of law arising from the facts stated. [Ed. Note. For other cases, see Pleading, Cent. Dig. 1145; Dec. Dig. 360(1).] 2. CONTRACTS 95(1) REQUISITES AND VaLIDITY-DURESS." Duress, for which a person may avoid a contract or recover back money paid under its in the town of West Orange to recover the sum of $1,455.92, collected by the town from her for taxes, and which collection she avers was made upon wrongful and unlawful duress and compulsion. The complaint, on motion, was struck out. [1] A motion to strike out a complaint under Practice Act 1912, for want of showing cause for action, is the equivalent of a demurrer in the former practice. A demurrer only admitted facts well pleaded, and not conclusions of law arising from the facts stated. Tinsman v. Bel. Del. R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565. See, also, Coxe v. Gulick, 10 N. J. Law, 328; Davis v. Minch, 80 N. J. Law, 214, 76 Atl. 328. Among the six reasons upon which the motion to strike out was grounded, one was that the complaint showed the taxes to have been paid voluntarily, and did not show com- [ful compulsion, the complaint was properly pulsion. If this contention be sound it is dismissed. alone sufficient to sustain the order appealed from. That order recites that the complaint does not disclose any cause of action. The complaint contains five counts. They are very voluminous, the first one being divided into 33 paragraphs; the second into 7; the third into 10; the fourth into 5; and the fifth into 5. [2] A very good definition of duress is that adopted in the opinion of the court in Re Meyer (D. C.) 106 Fed. 831, as follows: "The duress for which a person may avoid any contract or conveyance made, or recover where one by the unlawful act of the beneficiary back any money paid under its influence, exists or his authorized agent, or by the act of some person with his knowledge, is constrained under of free will to agree or to perform, the act circumstances which deprive him of the exercise sought to be avoided." The averments of the complaint, singly or together, do not show a case of duress within this definition. The parties to the suit at bar dealt at arm's length. In Camden v. Green, 54 N. J. Law, 591, 25 Atl. 357, 33 Am, St. Rep. 686, it was held to be a general principle that if a person without mistake of fact or in the absence of fraud, duress, or coercion pays money on a demand which is not enforceable against The complaint shows that the taxing authorities of the town having increased the assessed valuation of Mrs. Koewing's property, she appealed to the county and state boards and the valuation was reduced. Still being dissatisfied she prepared to appeal from the reduced valuation, but in treaty with the town it was agreed that she should let the valuation stand and pay $4,657.60, the face amount of the taxes due, and the town would waive the interest and costs thereon, amount ing to $678. She paid the $4,657.60, which the town accepted and used. The collector, how-him, the payment is deemed a voluntary one ever, disobeying instructions from the town authorities, credited the amount on taxes and costs for part of 1905 and for 1906, 1907, and 1908. This left an apparent balance of taxes for 1905 of $678, which would carry interest at 12 per cent. In 1915 the town notified Mrs. Koewing to exercise her right to redeem her property from the lien of the balance within 60 days, or, on failure thereof, she would be forever barred and the premises would become the town's property by operation of law. The sum demanded was $1,455.92, which was the tax balance of $678, with interest added. To avoid loss in the event of unsuccessful litigation Mrs. Koewing alleges that she paid the above-mentioned sum of $1,455.92 "under duress and compulsion," protesting that she owed nothing, and sued to recover the amount so paid. It was the complaint in the suit for its recovery that was struck out by the Supreme Court on the ground that it did not show cause for action, and from that order she has appealed to this court. The facts above recited are from the first count in the complaint. The second and third ones recite different proceedings looking to an adjustment of the matters in controversy between the parties, and the fourth and fifth ones advance different theories upon which the plaintiff claimed recovery upon the facts stated. The last four counts claim different sums as damages, according to the theory of the various counts. It is not deemed necessary to epitomize them here. [5] The gravamen of the whole complaint is, that the payment of the $1,455.92 was not voluntary, but was the result of duress and compulsion. The only question necessary to be decided is as to whether or not payment by the plaintiff was procured by the defendant "under duress and compulsion" as the plaintiff herself puts it, for if the payment and cannot be recalled. Thus it appears that if the tax lien could not have been enforced against the property of the appellant, and there was no mistake of fact, and no fraud, duress, or coercion practiced upon her, she could not recover the money paid. The complaint under review does not plead any fact showing mistake, fraud, or duress, or that the tax lien was not enforceable against the plaintiff, and therefore she is not entitled to recover. And the fact that she paid under protest does not aid her. Shoemaker & Co. v. Board of Health, 83 N. J. Law, 425, 85 Atl. 312. [4] In Mee v. Montclair, 84 N. J. Law, 400, 86 Atl. 261, a policeman was fined for delinquency and was told by the chief of police to indorse his salary check to the town in payment of the fine. This he did, but, as it did not appear that the fine was an illegal one, or that the chief used any coercion to compel the indorsement, or that the policeman had made a protest, it was held that the payment was voluntary and could not be recovered. It is not to be understood that if the policeman had protested that that would have compelled a different decision in his case. The fact that he did not protest appeared in the evidence and must be considered as having been adverted to in the opinion of the court, as tending, among other facts, to show that there was no compulsion. In 30 Cyc. p. 1310, it is stated that a payment is not rendered involuntary merely because the payer at the time makes a protest against the payment, and that if money is paid under compulsion no protest is necessary to lay the foundation of an action to recover it; but if there be doubt as to whether the payment was voluntary, the protest may be taken into account in determining that question. This is clearly the law. erced into making the payment she seeks to recover, through threats by the town authorities that unless she paid the sum demanded her right to redeem would be forever barred; that is, foreclosed. It has been held that the collection of money, secured by mortgage, through threats of foreclosure, does not amount to duress. See Shuck v. Association, 63 S. C. 134, 41 S. E. 28; Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 Am. St. Rep. 26; Nutting v. McCutcheon, 5 Minn. 382. We are of opinion that the payment sought to be recovered was free from the taint of duress or other compulsion, and was voluntary. Therefore the complaint was properly stricken out, as it showed no cause for action. This renders it unnecessary to consider the other reasons for reversal advanced by the appellant. tion was located the main line of tracks over which passengers were required to pass to reach the station. The ground on which the plaintiff was landed was about three inches lower than the top of the first rail of the main line, and the surface between the rails five inches below the top of the rail. In crossing the space between his landing and the station, plaintiff had to pass in front of a train standing on the main line, and, striking his toe against the first rail, he was thrown forward so that his foot struck the ground between the rails of the main line which was so much lower than the adjacent surface as to cause him to lose his balance, and he fell across the tracks and against the platform, resulting in injuries for which he brought his suit, and recovered the judgment from which defendant appeals. The first point which defendant argues The judgment of the court below will be is that it was error to refuse his motion for affirmed, with costs. a nonsuit and direction because there was no proof that the construction of its roadbed BERGEN, WHITE, and WILLIAMS, JJ., and station platform was not the type of dissenting. (89 N. J. Law, 643) SMITH V. DELAWARE, L. & W. R. CO. (Court of Errors and Appeals of New Jersey. Nov. 20, 1916.) (Syllabus by the Court.) CARRIERS 320(27) INJURIES TO PASSENGERS-ACTIONS QUESTION for Jury. Where a railroad company lands a passenger not at its regular station platform, but in a place where the surface of the ground is uneven, and the spaces between the rails of the tracks the passenger must cross to reach the station and street, are at least five inches in depth, and in so crossing, without aid from the company's servants, or warning of the unusual conditions, the passenger is thrown and injured because of the condition, a motion for nonsuit upon the ground that plaintiff had not shown that the construction of the platform and tracks were different from that in general use under like conditions, was properly refused. It is not a question of construction, but whether by acts of omission or commission the defendant neglected to perform its duty to provide a reasonably safe way for its passengers. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1217, 1233; Dec. Dig. 320(27).] Swayze and Parker, JJ., dissenting. Appeal from Supreme Court. Action by James H. Smith against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Frederic B. Scott, of New York City, for appellant. Arthur A. Palmer, of Bernardsville, for appellee. BERGEN, J. The plaintiff was a passenger of the defendant, and his destination Bernardsville, N. J. On the arrival of the train passengers were not delivered at the station platform, but the train was stopped on a side track between which and the sta construction usual in such cases, and that the sole question remaining was whether the operation of the standing train was such as to create in the mind of the plaintiff a fear of eminent danger. This proposition is based upon a false premise for the question was not one of construction of railroad or platform, but whether by the operation of its trains the defendant had provided the plaintiff with a proper landing place when he was left with his family between two lines of tracks with an uneven surface to cross, with a reasonable apprehension that the standing train might start, and was compelled to pass over uneven ground in order to leave the company's property. It was a jury question whether under all these circumstances it was not defendant's duty to warn or assist the plaintiff in proceeding in the only direction the defendant had provided for egress to the street. As was said by Mr. Justice Garrison, speaking, for this court in Gore v. Delaware, Lackawanna & Western Railroad Company, 98 Atl. 389: "The stopping of the train at one place rather than at another, the providing of proper light, the presence of trainmen to assist passengers in alighting under certain circumstances, or to warn them of certain conditions, are pure matters of operation." Therefore the motions rested upon the ground of proper construction of platform and tracks were properly refused. The negligence was not one of construction, but of landing a passenger in a place adopted by defendant for the convenient operation of its trains, and whether this course raised a duty which defendant neglected to fulfill was to be determined from all the circumstances, which is the province of a jury. The next point is that it was error to leave the question of construction to the jury; the court having charged, as requested MINTURN, J. The complainant filed his by the defendant, that there was no proof of bill, alleging the execution of a tripartite improper construction. We think counsel agreement in writing between himself and misconceives the action of the court. The his wife, and her trustee, Stephen Whittle, court in charging the jury instructed them by the terms of which, through the trustee, that it was the duty of the defendant to he agreed to pay his wife, Louisa M. provide a reasonably safe place for passen- Schlemm, who was then living in a state of gers to leave the train and get to the pub- separation from him, a stated weekly allic street. He then said that defendant con- lowance for the support of her and their tended that this was a reasonably safe place, child; that he continued these payments unthat the station and tracks were of the ordi- til he discovered that she had been guilty nary sort, "and that I think is not disputed during the separation of acts of adultery, in the evidence, and it may be that you may when he discontinued the payments; that find that so far as the construction is con- thereafter she, through her trustee, had incerned there was nothing for which you stituted a suit at law, upon the agreement, could find negligence." We see no error in to recover the payments due. this, what the defendant contended was that the station and track were so constructed that no negligence could be inferred from that, and that the construction included the way the defendant had furnished. In this part of the charge the court was dealing with the defendant's contention and was more liberal to defendant than it was entitled. The court subsequently, in charging, as defendant requested, took from the jury any question of the faulty construction of the station and tracks. There is no error in this record harmful to defendant, and the judgment will be affirmed, with costs. SWAYZE and PARKER, JJ., dissenting. (86 N. J. Eq. 415) SCHLEMM v. WHITTLE et al. The bill contained the further allegation that at the time of the execution of the agree ment it was mutually agreed between the husband and wife that during the separation she would live a virtuous life, and not commit adultery, and that a breach of the agreement upon her part, in the respect referred to, would terminate the complainant's obligation to continue the payments; that by mistake or inadvertence this provision was omitted from the written contract; that as a result of the adultery complained of a suit for divorce has been instituted by the complainant against his wife; that during the pendency of that suit the said trustee has commenced a suit at law to recover the payments due upon the written agreement. An injunction was prayed for enjoining the trustee and Louisa M. Schlemm, from prosecuting their legal action, and a decree in the alternative was sought requiring the sur (Court of Errors and Appeals of New Jersey. rendering up and the cancellation of the writ Nov. 20, 1916.) (Syllabus by the Court.) TEMPORARY INJUNC ten agreement, or its reformation by the insertion therein of a provision in consonance with the alleged omitted stipulation of the parties. INJUNCTION 136(3) TION-GROUNDS. The bill of complaint prayed for the reformaThe answer of the defendants denied the tion or cancellation of a contract between hus- material allegation of the bill, and specificalband and wife, through her trustee, providing support for the wife and child, because by inad- ly denied the making of the verbal agreevertence the agreement failed to include the true ment, and its inadvertent omission from the agreement between the parties, and also prayed written contract. Upon the filing of the bill for an injunction to stay the proceedings in a suit at law brought by the trustee to collect an order to show cause containing an ad inarrears due to the wife upon the agreement. terim restraint was granted why an injunc Held, that a preliminary injunction staying the tion should not issue to restrain the suit at suit at law was improperly ordered, since the al- law. Upon the hearing of that order upon legations of the bill were fully met by the an- the bill and answer and affidavits a temposwer, and neither the pleadings nor proof upon which the order was made presented a case show-rary injunction or restraining order was ising either an urgent necessity for an injunction, sued whereby the defendants were enjoined nor the probability of irreparable injury result from further prosecuting their action at law ing because of failure to issue it. until the determination of this suit. From that order this appeal is taken. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 308, 309; Dec. Dig. 136(3).] Appeal from Court of Chancery. Action by William Schlemm against Stephen Whittle and another. From an order granting a preliminary injunction, defendants appeal. Reversed. Weller & Lichtenstein, of Hoboken, for appellants. J. Emil Walscheid, of Town of Union, for appellee. We find it unnecessary for the determination of the propriety of making the order appealed from to discuss the merits of the issue presented, from the viewpoint of equitable jurisdiction, further than to reiterate the fact that every material allegation in the bill has been met by a specific denial in the answer. To warrant the issuing of a preliminary injunction in such a situation, it must be and in such a situation as a general rule the reasonably apparent that the damage which injunctive power of a court of equity will the complaining party is liable to suffer will not be exercised unless the controversy can be irreparable in character, or that the ur-be brought within the exceptions referred to, gent necessity of the case requires the inter-based upon the notion of urgent necessity, vention of the protecting arm of the court or irreparable loss, for the purpose of preto save the subject-matter of the controversy serving the res or the status quo ante as an from impairment or destruction. Willard, indispensable condition for the preservation Eq. Jurisprudence, 343. This statement of of the rights of the parties. the equitable doctrine has frequently receiv- In the case at bar the legal liability of ed the consideration of this court in reported the complainant to support his wife and cases which may be found collected in the child is accentuated by his written contract digests. 4 N. J. Digest, 6902; Supplement for that purpose and his performance of the N. J. Digest, 1155. But the ratio decidendi covenant for a comparatively lengthy period. and the logical analysis of the equitable The failure of the court to repudiate the conphilosophy underlying the doctrine was pre- tract upon his petition in limine may result sented in this court with that singular acu-in temporary inconvenience to him, and permen and learned lucidity which invariably haps, from his viewpoint, to an unnecessary distinguished the pronouncements of Chief financial expenditure, but in no sense can Justice Beasley, in Citizens' Coach Co. v. that situation be magnified into a status of Camden Horse R. R. Co., 29 N. J. Eq. 299. urgent necessity or irreparable loss. That case is the exponent of three settled The status presented is one of complainrules of equity procedure which appear to us ant's own making, and perhaps, as he conto be dispositive of the case at bar: (1) A tends, and as the sequel may prove, a situapreliminary injunction is never granted un- tion brought upon him by his own mistake or less the act threatened to be done will inflict inadvertence, but none the less of his own an irreparable injury on the complainant; | creation, the burden of which he must in (2) nor will the writ be issued where the equity continue to assume until his rights right of the complainant depends on an un- shall have been adjudicated upon final hearsettled question of law; (3) it is a general ing of the cause. rule that, when the equity of the complainant is disproved by the answer and affidavits, a preliminary injunction is not proper. The order appealed from will be reversed. (89 N. J. Law, 543) MELLOR et al. v. KAIGHN. The present Chief Justice, in McMillan v. Kuehnle, 78 N. J. Eq. 253, 78 Atl. 185, speaking for this court over 30 years after the de- (Court of Errors and Appeals of New Jersey. termination in the Citizens' Coach Co. Case, emphasized the importance of a rigid adherence to this rule in the case of an alleged recurring weekly nuisance, and there declared the settled corollary of the rule that: "It is not necessary now to consider whether the disturbance of the complainant's rights is of such a character as to entitle them to an injunction upon a final hearing of the cause.' The present Chancellor, in Aldrich v. Union Bag & Paper Co., 81 N. J. Eq. 247, 87 Atl. 66, adverting to this adjudication, observed that the Court of Chancery "was recently admonished in McMillan v. Kuehnle not to award preliminary injunctions except to prevent irreparable injury," which in effect was but another method of emphasizing the long-established equitable doctrine that such injunctive relief should be exercised only "with extreme caution." Citizens' Coach Co. Case, ubi supra; Ramsey v. Erie R. R., 38 How. Prac. 193; Willard's Eq. Juris. 344. It must suffice to observe here under the rule adverted to that the gravamen of the complainant's alleged right-1. e., the existence of the agreement-is disputed in toto by the defendants' answer and affidavits. This status renders the complainant's right to the relief prayed for upon this application a controverted question, the settlement of which must be postponed until final hearing, Nov. 20, 1916.) (Syllabus by the Court.) 1. APPEAL AND ERROR 4-CERTIORARI The proceedings of an inferior tribunal are reviewable upon appeal when the court below has jurisdiction, and by certiorari when it exceeds its jurisdiction. Error, Cent. Dig. §§ 8-21; Dec. Dig. 4; [Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 1; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Certiorari.] 3. COURTS 198-PROBATE-JURISDICTION. This The surrogate of a county in probating a court, however, is not one of general jurisdiction, will acts judicially and holds a court. but is an inferior tribunal of special jurisdiction. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 469, 471-475, 478; Dec. Dig. 198.] 4. COURTS 198-PROBATE JURISDICTION— SURROGATES. The jurisdiction of a surrogate, or surrogate's court, is purely statutory, extending to the probate of wills, the granting of letters of ad |