TIES. The rule that a bill to foreclose a trust mortgage should make all the beneficiaries parties applies only when the beneficiaries are known and are not so numerous as to make it impossible or highly inconvenient to include [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 427.*] them. 3. MORTGAGES (§ 417*)-RIGHT TO FORECLOSE. The holder of a mortgage is, after default, entitled to sue to foreclose the equity of redemp tion by a sale of the premises. of our municipalities, and is so declared in | 2. MORTGAGES ( 427*)-FORECLOSURE-PAR· our opinion in that case. That power is vested in the city of Atlantic City by section 14, pl. 40, of the act of April 3, 1902, entitled "An act relating to, regulating and providing for the government of cities" (P. L. p. 284), which is in force in that municipality. That placitum empowers the city to regulate the use of its streets "by any street railway company or companies operating a street railway therein." The installation of additional turnouts in a single-track railroad, when increased travel makes them necessary for the public convenience, is not a radical change in the system itself, requiring (perhaps) proceedings de novo under the act of 1896, but a mere incidental change in the use of the streets, as much so as the taking out of derailing switches, and the narrowing of the gauge of the tracks, and can equally be required by the municipality under its authority to regulate the use of those streets. But, notwithstanding the conclusion which we have reached upon the main question, we are of opinion that the judgment under review must be affirmed. The fourteenth section of the act of 1902, which confers upon Atlantic City the power to regulate the use of its streets by street railway companies, requires that such power shall be exercised by ordinance, and the eleventh section of the act requires that all ordinances passed by council shall be submitted to the mayor of the city for his approval. The proceeding in the present case was by resolution, and was not submitted to the mayor. It complied with the statutory requirement neither in form nor in substance. It was, consequently, not a lawful exercise of the power conferred by the statute, and is a nullity. It is proper to add that it is not claimed by the defendants in error, either by their reasons filed in the Supreme Court or in argument here, that the tracks authorized by the resolution under review are anything more than mere turnouts, and that we have therefore dealt with the resolution as a determination by the city council, made in good faith, that turnouts at the places and of the length specified therein were reasonably necessary for the proper operation of the single track railway of the plaintiff in error. The judgment under review will be firmed. (75 N. J. E. 600) [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 417.*] Appeal from Court of Chancery. Bill by the Camden Safe Deposit & Trust Company, trustee, against John H. Dialogue. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed. French & Richards, for appellant. George J. Bergen, for respondent. PER CURIAM. The bill in this case was filed to foreclose a mortgage given by John H. Dialogue to the Camden Safe Deposit & Trust Company, as trustee, to secure the payment of 188 bonds of $500 each. The complainant has made the holders of about 40 per cent. of these bonds parties to the litigation, and alleges in its bill that the holders of the balance of said bonds are unknown to it, and cannot be ascertained by it, and that it is highly inconvenient or impossible to bring them before the court and make them parties to the proceedings. The de fendant demurred to the bill upon two grounds: (1) "Because the holders and owners of all of the bonds are not made parties"; and (2) "because complainant is not entitled to the relief prayed for-a sale of the mortgaged premises." The learned vice chancellor before whom the matter was heard advised an order overruling the demurrer. From the order so advised, this appeal is taken. The order will be affirmed. The demurrer admits the truth of the facts stated in the bill. Although, as a general rule, a trustee who files a bill to foreclose a mortgage held by him should make his cestuis que trust parties, that rule has its limitations. It is only applicable when the cestuis que trust are known, and are not so af-numerous as to make it impossible, or high CAMDEN SAFE DEPOSIT & TRUST CO. v. DIALOGUE. (Court of Errors and Appeals of New Jersey. March 22, 1909.) 1. EQUITY (§ 239*)-ADMISSIONS BY DEMUR RER. A demurrer admits the truth of the facts stated in the bill. [Ed. Note.-For other cases, see Equity, Cent. Dig. § 494; Dec. Dig. 239.*] ly inconvenient, to include them as parties. Butler v. Farry, 68 N. J. Eq. 760, 63 Atl. 240. The contention that the complainant is not entitled to a decree ordering a sale of the mortgaged premises is, of course, without substance. The holder of a mortgage is, after default, entitled to foreclose the equity of redemption. The order for sale following a decree of foreclosure is in the interest of It the owner of the mortgaged premises. relieves him from the hardship of a strict foreclosure. The second contention of the that the partnership should continue for five demurrant could only have substance upon the theory that there was no equity of redemption in him to be foreclosed. (75 N. J. E. 401) NATHAN et al. v. BACON et al. years from that date. A copy of that agreement is also annexed to the bill. Defendants claim that the provision in the later agreement for the partnership to continue five years from its date was intended to refer to a period of five years from the date of the first agreement. The two agreements are (Court of Chancery of New Jersey. March 5, practically identical, except as to the added 1909.) 1. PARTNERSHIP (§ 325*)-ACTIONS FOR DISSOLUTION AND ACCOUNTING-APPOINTMENT OF RECEIVER-GROUNDS. On a bill for closing the affairs of a partnership admittedly dissolved, a receiver will be appointed only when it appears necessary to protect the interests of the parties. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 757-767; Dec. Dig. § 325.*] 2. PARTNERSHIP (§ 278*)—DISSOLUTION-PowER OF PARTNERS OVER ASSETS. At the dissolution of a partnership, the powers of the partners over the assets continue only so far as is necessary to wind up the firm affairs. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 625; Dec. Dig. § 278.*] 3. PARTNERSHIP _(§ 325*)-DISSOLUTION—APPOINTMENT OF RECEIVER. Where some of the members of a partnership upon dissolution hold possession of all the assets, and conduct the business under claim of sole ownership, and not for the purpose of winding up the firm affairs, unwarrantedly assuming power under the partnership agreement to have the assets appraised and extinguish the other members' interest in the assets by tendering them one-third of the amount of the appraise ment, the other members of the firm are entitled to a receiver to wind up the affairs. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 757-767; Dec. Dig. § 325.*] Bill by Harry M. Nathan and another against Wilbert M. Bacon and others for a receiver and for an accounting. Order for appointment of receiver. scope of the business to be engaged in as contained in the later agreement. By the terms of the partnership agreement defendants were to be the active partners, and were to have the entire management and control of the business, and were to draw from the profits of the business a weekly stipend for their services. Complainants had no duties to perform except to contribute a specified amount to the capital. The respective partners have fully complied with all of the terms of the agreement up to February 1, 1909. Complainants' interest in the partnership is onesixth each and defendants' interest is onethird each. The agreement contains no provision touching the manner in which the partnership business shall be closed out at the expiration of the term. On December 11, 1908, defendants by letter notified complainants that as the partnership would expire February 1, 1909, and be then dissolved, they would begin preparation for dissolution by reduction of stock and collection of debts, and beginning January 20, 1909, they would take account of stock and otherwise prepare for a full and complete severance of the part nership relation, and invited complainants to co-operate. On January 23, 1909, defendants by another letter notified complainants that stock taking had commenced pursuant to the former notice, and would be resumed January 26, 1909, and that, unless complainants The bill is filed by two of the four part- appeared, three disinterested appraisers would ners, who comprise a commercial copartner- be appointed by defendants to take stock ship, with its place of business at Bridgeton, commencing January 27, 1909. Complainants N. J., and seeks the appointment of a receiv- protested against the proposed course of deer to wind up the business and also an ac- fendants, and demanded a continuation of counting by the two defendant partners who the partnership pursuant to the terms of the are in possession of the assets of the business. partnership agreement until September 26, The controversy between the parties arises 1910, which date complainants claim to be from the fact that defendants claim that the the date for the termination of the partnerpartnership terminated February 1, 1909, un- ship. Defendants, however, completed the inder the terms of the partnership agreement, ventory of assets as proposed, and forwardwhereas complainants claim that the part- ed a copy to complainants and a certified nership agreement contemplates the continu- check for complainants' interest as ascertainance of the partnership until September 26, ed by the appraisement, and notified com1910. The bill sets forth that the partner- plainants that they would no longer be recship was originally formed February 1, 1904, ognized as having any interest in the partnerpursuant to a written partnership agreement, ship. The check was returned by complaina copy of which is attached to the bill. By ants with a notice that they protested against the terms of that agreement, the partnership the action of defendants and insisted upon a was to continue for a period of five years fulfillment of the partnership agreement unfrom that date. The bill further avers that til the end of the term. Since February 1, on September 26, 1905, a new written part-1909, defendants have been conducting the nership agreement was made, wherein it was business as their own under claim of sole provided that an additional line of merchan-ownership by reason of the tender of the cerdise should be added to the business, and tified check referred to. The bill asserts that, by reason of the fore- | in the nature of the partnership which congoing facts, the copartnership is dissolved, fers upon defendants any such privilege. In and that complainants are entitled to an ac- this unfortunate situation I can see no way counting of the assets and profits that have to fully protect the interests of the parties accrued and which would hereafter have ac- without the appointment of a receiver to crued during the balance of the term, and wind up the affairs of the business. seeks the appointment of a receiver to close out the business, and the issuance of an injunction against further acts of defendants. The cause has been heard at the return of an order to show cause on bill, answer, and cross-bill and affidavits. William T. Boyle, for complainants. Walter H. Bacon, for defendants. LEAMING, V. C. (after stating the facts as above). The only question for determination at this time is whether a receiver should be appointed to take possession of the assets of the business. Should a receiver be appointed, the injunction which complainants seek would appropriately accompany the order appointing the receiver. I will advise an order for the appointment of a receiver and for the issuance of an appropriate injunction to secure to the receiver complete control of the assets. (76 N. J. L. 625) TOWN OF MONTCLAIR v. AMEND. (Court of Errors and Appeals of New Jersey. March 1, 1909.) 1. CRIMINAL LAW (§ 1028*)-REVIEW-OBJECTIONS NOT MADE BELOW. The Court of Errors and Appeals will not reverse a judgment of an inferior court in a criminal case on matters not raised below. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. § 1028.*] 2. CRIMINAL LAW (§_1181*)—Review—JudgMENT ON REVIEW-FORM. Generally the judgment of a reviewing court should be one of affirmance or reversal, whether the judgment of the lower court be brought up by certiorari or by writ of error. [Ed. Note.-For other cases, Law, Dec. Dig. § 1181.*] Error to Supreme Court. see Criminal Frank E. Bradner, for plaintiff in error. Robert M. Boyd, Jr., for defendant in error. The partnership in question is now at an end so far as the future prosecution of the partnership business as such is concerned. This is admitted by both complainants and defendants. Defendants assert that it is at an end by the expiration of the term agreed upon for its continuance. Complainants assert that it has been dissolved by reason of defendants' conduct. It has been held in Thomas Amend was convicted before a some states that on a bill for closing the af- magistrate of violating an ordinance of the fairs of a partnership, when it is admitted town of Montclair prohibiting the removal of that the firm has been dissolved, the appoint- wooden structures into the fire limits, and ment of a receiver follows as a matter of he brings error to review an order of the course; but in this state that rule has not Supreme Court (68 Atl. 1067) dismissing cerbeen adopted. It has here been repeatedly tiorari to review a judgment of the court of held that in such case a receiver will be ap-common pleas affirming the conviction. Afpointed only when it appears necessary to firmed. protect the interests of the parties. Renton v. Chaplain, 9 N. J. Eq. 63; Birdsell V. Colie, 10 N. J. Eq. 63; Cox v. Peters, 13 N. J. Eq. 41; Randall v. Morrell, 17 N. J. Eq. 343, 364; Warwick v. Stockton, 55 N. J. Eq. 61, 67, 36 Atl. 488. I am convinced, however, that in this case the appointment of a receiver is necessary to properly protect the interests of the parties. At dissolution, the powers of the partners over the partnership assets continue only so far as is necessary for the purpose of winding up the affairs of the partnership. Defendants are now in possession of all of the assets, and are conducting the business under claim of sole ownership, and not for the purpose of winding up the partnership affairs. They are proceeding upon the assumption that it was their right at the end of what they conceived to be the partnership term to have the assets appraised and to extinguish the interest of complainants by tendering to complainants one-third of the amount of the appraisement. They thus assumed the power to compel complainants to sell to them for that amount. There is nothing in the partnership agreement or GUMMERE, C. J. The plaintiff in error, Amend, was convicted before a magistrate of the town of Montclair of the violation of an ordinance of that town which prohibited "the removal of any wooden building or structure from without to within the fire limits." This conviction was affirmed, on appeal by the court of common pleas of Essex county. A certiorari was then sued out of the Supreme Court to review the judgment of the common pleas. On the return of the writ, and the hearing thereon, the Supreme Court, finding no error in the judgment which it was reviewing, directed that the certiorari be dismissed. The present writ of error is sued out to contest the validity of the Supreme Court's order. The contention made before us is that the judgment of the Supreme Court is erroneous, in that it did not direct a reversal of the judgment of the court of common pleas, for reasons set out in the assignments of error filed in this court. Some of the rea-erty of the Tuckerton Railroad Company sons contained in these assignments were used for railroad purposes, including its fransubmitted to the Supreme Court as grounds chises. The grounds upon which the validity for reversing the judgment of the common of the tax was assailed in the court below, pleas; others were not. So far as the as- and is here, are, first, that the tax was assignments of error that present questions sessed upon an erroneous principle, and, which were brought to the attention of the second, that the valuation upon which it is Supreme Court are concerned, we find them based is excessive. The conclusion reached to be without merit, and for the reasons by the Supreme Court was that the valuation stated in the opinion of Minturn, J., speak-"was reasonable, and not based upon any ing for that court. Those assignments which wrong principle." present questions not raised by the reasons filed in the Supreme Court we have not considered, for this court will not reverse the judgment of an inferior tribunal upon points not taken, or matters not raised, in the court below. Del., Lack. & West. R. R. Co. v. Dailey, 37 N. J. Law, 526; Trent Tile Co. v. Ft. Dearborn Nat. Bank, 54 N. J. Law, 599, 25 Atl. 411. The return made by the State Board of Assessors to the writ of certiorari which brought up the tax to the Supreme Court does not disclose "the principle" adopted by it in valuing the company's property, except that it ascertained its "true value." The contention on behalf of the company is that the value placed upon its property by the state board is excessive, and not its true value, and that The judgment of the Supreme Court will therefore the board must have adopted be affirmed. We deem it proper to add that we are not, by our affirmance of this judgment, to be considered as approving its form. As we have stated, it directs a dismissal of the writ of certiorari. As a general rule, when the judgment of a lower court is under review in an appellate tribunal, the judgment of the reviewing court should be one of affirmance or of reversal; and this is so, without regard to whether the judgment of the lower court be brought up by certiorari or by writ of error. But, as the form of the present judgment has not been made the subject of an assignment of error, we not called upon to consider it. (77 N. J. L. 614) are an erroneous principle in determining that value. But neither of these contentions can prevail in this court. The Supreme Court has found as a matter of fact that the valuation of the state board was a reasonable one, and that finding will not be reviewed here if there is any evidence to support it. Moran v. Jersey City, 58 N. J. Law, 653, 35 Atl. 950; Del., Lack. & West. R. R. Co. v. Newark, 63 N. J. Law, 310, 43 Atl. 691. That there was such evidence is apparent from an examination of the case. The state board not having assessed this property beyond its true value, the contention of the plaintiff in error that the valuation placed upon it forces the conclusion that a wrong principle was adopted in making it, of course, falls to the ground. The judgment under review will be af TUCKERTON R. CO. v. STATE BOARD firmed. OF ASSESSORS. (Court of Errors and Appeals of New Jersey. March 1, 1909.) (77 N. J. L. 796) APPEAL AND ERROR (§ 1010*)-REVIEW-CON- SUSQUEHANNA COAL CO. v. MAYOR, A finding of the Supreme Court on a matter of fact will not be reviewed on appeal, if there is any evidence to support it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3979; Dec. Dig. § 1010.*] Error to Supreme Court. ETC., OF BOROUGH OF SOUTH (Court of Errors and Appeals of New Jersey. APPEAL AND ERROR (§ 1010*)—CONCLUSIVE- DENCE. where there is ample evidence to support it. Error, Cent. Dig. § 3979; Dec. Dig. § 1010.*] [Ed. Note.-For other cases, see Appeal and A finding of the Supreme Court on a matCertiorari by the Tuckerton Railroad Com-ter of fact will not be reviewed on appeal, pany to review a tax assessment made by the State Board of Assessors. The tax was affirmed by the Supreme Court (67 Atl. 69), and the Tuckerton Railroad Company brings error. Affirmed. Error to Supreme Court. Certiorari by the Susquehanna Coal Company against the Mayor and Council of the Borough of South Amboy to review an as sessment. The taxes were affirmed by the Supreme Court (69 Atl. 454), and the coal company brings error. Affirmed. Vredenburgh, Wall & Carey, for plaintif in error. Frederick H. Pearse, for defendant PER CURIAM. The judgment under review in this case affirmed a tax imposed by the State Board of Assessors upon the prop-in error. sumably to meet the requirements of the traffic, when the difference of level is not greater than that one portion of it is lower than another, the height of an ordinary step. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1283-1285; Dec. Dig. § 316.*] 4. CARRIERS (§ 286*) - CARRIAGE OF PASSENFURNISHING PROPER APPLIANCES DUTY TO WARN PASSENGERS. GERS The duty of a carrier to care for the safety of its passengers, so far as the furnishing of appliances is concerned, is fully performed when the appliances furnished are of a standard charto call passengers' attention to the method of acter and in proper repair, and it is not obliged construction of platforms, stations, or other appliances, provided the method is that generally adopted by other well-regulated carriers. Cent. Dig. 88 1142-1152; Dec. Dig. § 286.*] [Ed. Note.-For other cases, see Carriers, Pitney and Minturn, JJ., dissenting. PER CURIAM. This is a certiorari case. I structed its station platform in such a way, preThe writ brought up the assessment of a tax imposed by the borough of South Amboy upon a mass of coal belonging to the Susquehanna Coal Company, and alleged to be in storage at South Amboy. The company resisted the imposition of the tax upon the claim that the coal was specifically consigned to, or intended for, definite purchasers in the New England states, and was merely stored temporarily at South Amboy because of the failure of the trains which brought it there to connect with the coal barges in which it was to be forwarded, in such a way as to enable the car loads to be dumped atrectly from the cars into the boats. The Supreme Court held that this contention was not made out by the proofs, and found that this coal was not consigned from the mine to any definite customers, but that, on the contrary, it was consigned by the coal company in Pennsylvania to itself in South Amboy, in anticipation of orders from regular customers, and, upon reaching South Amboy, awaited such orders indefinitely. This finding of the Supreme Court has ample evidence to support it. That being so, its determination of fact is final, and cannot be made the subject of review by this court. Tuckerton R. R. Co. v. State Board of Assessors (de cided at the November term, 1908) 72 Atl. 361, and cases cited. Accepting this finding of the Supreme Court, the tax was properly assessed, for the reasons stated by Parker, J., in the opinion delivered by him in that court. The judgment under review will be af firmed. (77 N. J. L. 502) FEIL v. WEST JERSEY & S. R. CO. (Court of Errors and Appeals of New Jersey. March 22, 1909.) 1. CARRIERS (§ 316*)-NEGLIGENCE-ACTIONS. In an action against a carrier for negligence resulting in injury, plaintiff must show a breach of duty on the carrier's part, or on the part of its servants, which has produced the injury. [Ed. Note. For other cases, see. Carriers, Cent. Dig. §§ 1261-1294; Dec. Dig. 316.*] 2. CARRIERS (§ 286*)-CARRIAGE OF PASSENGERS-DUTY AS TO STATION PLATFORMS, Error to Supreme Court. Personal injury action by Sarah B. Fell against the West Jersey & Seashore Railroad Company. Judgment of nonsuit, and plaintiff brings error. Affirmed. Carrow & Kraft, for plaintiff in error. Bourgeois & Sooy, for defendant in error. GUMMERE, C. J. The plaintiff, a schoolteacher residing at Vineland, became a pasber 14, 1906, to be carried from Vineland to senger of the defendant company on NovemCape May, where a teachers' institute was being held. defendant company's road was operated by electricity. From Millville to Cape May it electric road at Millville station were on the was operated by steam. The tracks of the west side of the platform, and those of the steam road were on the east side. Passengers going from Vineland to Cape May were required, when they reached Millville, to alight from the electric train and walk across the station platform to board the Cape May train. A certain portion of the platform was depressed so as to form a part of a truckway from the electric road to and across the tracks of the steam road, in order, apparently, that baggage might be conveniently and rapidly transferred from the one road to the other. The depression in the platform was gradual; its lowest point From Vineland to Millville the The duty of a railroad company to its pas-being on a level with the top of the rails and sengers as to its station platforms is to use the care of persons of ordinary prudence under like circumstances to see that the construction adopted will render the platform as safe as the exigencies of its business will permit. and the adoption of a platform construction like that in general use by well-regulated railroad companies, and which is approved by experience, is a sufficient performance of the duty. As she was about 10 inches below the ordinary level of the platform. Plaintiff got off the electric train with about 50 other passengers, and started to walk across the platform with them to the Cape May train, in response to the invitation of the conductor of that train, who called out to the plaintiff and her fel[Ed. Note.-For other cases, see Carriers, low passengers, "All aboard.” Cent. Dig. §§ 1142-1152; Dec. Dig. § 286.*] proceeding across the platform, she came to 3. CARRIERS (§ 316*)-CARRIAGE OF PASSEN- the truckway without observing it or being GERS STATION PLATFORMS-PRESUMPTION OF aware of its existence, and, in unconsciously NEGLIGENCE FROM METHOD OF CONSTRUC-stepping down some 8 or 10 inches from No presumption of want of due care of a the higher to the lower level, lost her balcarrier arises from the fact that it has con- ance, fell, and quite seriously injured her TION. |