ed view, and until it appeared that such view was interrupted no possessory right of action existed. Assuming, as we must, that a jury might find that the Ocean Beach Association had dedicated land, of which the locus in quo is a part, to public use as a park for the benefit of all the lot owners, all that remained to be determined was whether the plaintiff was entitled to possession of the land when the action was commenced. The title to the fee was not involved, and the only question was as to which of the parties had the right of possession; for, as was said by Mr. Justice Dixon, speaking for this court in French v. Robb, 67 N. J. Law, 260, 51 Atl. 509, 57 L. R. A. 956, 91 Am. St. Rep. 433, where the pleadings were the same as in this case, the defendant "by that plea admits a possession or claim of title which would exclude or oust the plaintiff." So, when this motion for nonsuit was refused, there was testimony from which a dedication of the locus in quo to public use could be inferred, and a possession by the defendant, admitted by his plea, which would exclude the plaintiff therefrom. Whether the plaintiff had shown such sion against the defendant depended upon the facts proven in support of such dedication. That plaintiff, representing the public, was entitled to possession if there was a dedication of the land to public use as a park for the benefit of those who purchased lots from the owner making the dedication, has been determined in this court in Price v. Plainfield, 40 N. J. Law, 608. According to the case submitted by the plaintiff it appeared that the Ocean Beach Association, owning a large tract of land lying along, and adjacent to, the Atlantic Ocean, caused a map to be made of it, which was duly filed in the office of the clerk of the county of Monmouth, in which county the land is located. All of the land, excepting a tract or square adjoining the ocean, and some other small parcels alleged to have been dedicated to public use, but which are not within the present controversy, was divided into blocks and lots, and a number given to each lot. The block or square of which the locus in quo was a part was not divided into lots or marked in any way on the first map, but was shown on it as an open space lying between the ocean and a lake, having at that time an outlet to the ocean, which outlet, according to subsequent maps, was afterwards closed by the association when it improved Ocean avenue, a dedication as to give it a right of posseswhich had been opened parallel with the ocean and between it and the body of the lake, by removing a bridge which crossed the outlet and at the same time filling in the outlet with earth. The map also shows that along each side of the lake there was protracted an avenue, with lots fronting on each; the location being such that, if the space between the lake and the ocean was not built upon, all or nearly all of the lot owners would have an unobstructed view of the ocean. The square or block at the east end of the lake was never sold by the association; but, after all of the remaining land had been disposed of, this block or square was divided into lots, and a lot conveyed by the corporation to each of the stockholders, of whom the defendant is one. There was evidence that at what appears to have been the first public sale of lots, made in 1875 or 1876, the auctioneer, by direction of the president of the association, who was present, announced to the prospective purchasers that the square of land lying between the lake and the ocean would never be sold, but kept and used as a public park, so that the owners of the lots on ⚫ each side of the lake would always have an unobstructed view of the ocean; and there was also other testimony from which it might be properly inferred that this square or block of land was dedicated by the owners for public use as a park. Under such (Court of Errors and Appeals of New Jersey circumstances the trial court would not have been justified in determining that the easement was as restricted as defendant claims; for the character of the easement was disputed, and a question of fact was thus raised, which the plaintiff was entitled to have submitted to a jury. Weger v. Delran, 61 N. J. Law, 224, 39 Atl. 730. The plaintiff, under the testimony in this case, was entitled to have the jury pass upon the question of dedication, and, if there was a dedication of the land to public use as a park, it was entitled to possession for the benefit of the public; and, the plea admitting that there was a possession by the defendant which excluded the plaintiff, the question of the dedication upon which the right of possession depended was properly submitted to the jury, and there was no error committed by the trial court in refusing to order a nonsuit upon the ground assigned as error. The plaintiff in error has argued only the question relating to the disposal of his motion for a nonsuit; and, we being of opinion that the nonsuit was properly refused, the judgment is affirmed. ASTOR et al. v. STATE. March 1, 1909.) Stock in a New Jersey corporation belonging to a testator domiciled in Monaco is not subject to the inheritance tax imposed by the act of May 15, 1894 (P. L. p. 318; 3 Gen. St. 1895, p. 3339), providing that upon all property which shall be within this state transferred by inheritance, bequest, or devise, an inheritance tax may be imposed, as the act applies to the general succession to the whole estate, and not to the particular succession to a special portion of the estate. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1682; Dec. Dig. § 867.*] Appeal from Prerogative Court. Proceedings by the State against John Jacob Astor and others, executors of the estate of Mrs. Delano. From an order sustaining the right of the State to tax the estate of Mrs. Delano, the executors appeal. Reversed. John W. Griggs, for appellants. Edmund Wilson, Atty. Gen., for the State. PER CURIAM. Counsel in this case have agreed that it is determined by the decision in Nielson, Ex'r, v. Russell, 71 Atl. 286. Upon examining the printed record we find that it is incomplete, in that it omits to print the will of Mrs. Delano. All that is material appearing in the agreed state of facts is that she never had resided in New Jersey, was not seised of real estate in New Jersey, and had been a resident of the principality of Monaco for a number of years prior to her death, and that her will was admitted to probate in the state of New York as the will of a nonresident. Under these facts some of tion by a constable, who had been notified of the existence of the mortgage, is not precluded from asserting his rights as such mortgagee, in a suit in tort against the officer, by the fact that he failed to avail himself of the provisions of section 190 of the district court act (P. L. 1898, p. 624), providing a mode for trying a claim of property. [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. § 262; Dec. Dig. § 128.*] 2. CHATTEL MORTGAGES (8 55*)-STATEMENT OF CONSIDERATION-SUFFICIENCY. pliance with the provisions of the chattel mortgage act (P. L. 1902, p. 487), which required the statement of the consideration of the mortgage annexed thereto, will suffice. In the absence of fraud, a substantial com [Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 55.*] (Syllabus by the Court.) Appeal from District Court of Hoboken. Action by William Breit against John Solferino. Judgment for plaintiff, and defendant appeals. Affirmed. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. A. O. Ciccarelli, for appellant. I. F. Goldenhorn, for appellee. MINTURN, J. The plaintiff held a chattel sion of the mortgaged goods in virtue thereof. The mortgagee thereupon instituted this action in tort against the defendant. the reasoning in Nielson v. Russell is inap-mortgage for the sum of $500 upon certain goods and chattels of one Benjamin Fleischer, plicable to the present case. We decided in which was duly acknowledged and recorded. that case, however, that by the act of May Subsequently the plaintiff obtained a judg 15, 1894 (P. L. p. 318; 3 Gen. St. 1895, P. ment against Fleischer in the district court 3339), the tax upon nonresidents was imposed of the city of Hoboken, and sold the mortonly in cases of inheritance, distribution, bequest, and devise (disregarding as inapplicable gaged goods under an execution issued upon the provisions as to deeds and gifts intended the judgment. Prior to the sale the constable to take effect in possession or enjoyment aft- was notified of the existence of the mortgage er the death of the grantor or bargainor). by the counsel for the mortgagee, but ignored These words we held were naturally appli-it, proceeded with the sale, and took possescable to the general succession to the whole estate, and not to the particular succession to a special portion of the estate, which in this case is the stock of the New Jersey corporation. That general succession we held was a succession under the foreign law, and therefore not taxable in this state, following Wallace v. Attorney General, L. R. 1 Ch. 1, 35 L. J. Eq. 124, Embury's Estate, 19 App. Div. 214, 45 N. Y. Supp. 881, and Eidman v. Martinez, 184 U. S. 578, 22 Sup. Ct. 515, 46 L. Ed. 697. That reasoning is applicable to the present case, and we agree with counsel and with the opinion expressed by the ordinary that the same result must follow in this case as in that. The decree is therefore reversed. (77 N. J. L. 436) BREIT v. SOLFERINO. (Supreme Court of New Jersey. 1909.) One of the defenses relied upon was that But there the mortgage was fraudulent. was no competent proof of that allegation. The plaintiff's attorney, who drew the mortgage, testified to the fact that he had seen the consideration ($500) paid by the mortgagee to the mortgagor. The fact that the court overruled the question upon cross-examination whether the witness could tell the denomination of the bills was of little moment, and it is not perceived how its exclusion could prejudice the defendant. It was further contended that because the plaintiff had not served a notice of claim of property upon defendant, under section 190 of the district court act (P. L. 1898, p. 624), the defendant was warranted in ignoring the plaintiff's claim, and selling the March 9, goods under the execution; and in support of this contention defendant relies upon Masters v. Champion, 69 Atl. 224. That case, 1. SHERIFFS AND CONSTABLES (§ 128*) RIGHTS OF MORTGAGEE-LEVY-EXECUTION- however, affords no support to the contenTRIAL OF CLAIM TO PROPERTY. tion, for there the owner of the chattels sold, made a written claim pursuant to which the A mortgagee, in a chattel mortgage which covered chattels about to be sold under execu sale was adjourned, and no further effort | John Rauffenbart, for defendant Bauer. U. was made to enforce the claim, and the Court | G. Styron, for other defendants. of Errors put the decision entirely upon the ground of abandonment by the claimant of her claims. In the case at bar no adjournment was had, and no opportunity was afforded the plaintiff to apply for a jury and try the right of property, as contemplated by section 190. The case sub judice, therefore, is ruled by those cases which have determined that the claimant may rely upon his common-law remedy, where his claim is ignored, and that the officer sells at his own risk. Harris v. Krause, 60 N. J. Law, 73, 37 Atl. 439; Berry v. Chamberlain, 53 N. J. Law, 463, 23 Atl. 115. It is finally contended that the plaintiff's mortgage is invalid because of an alleged defect in the affidavit annexed thereto, and gives him no right or title to the property in question. But this contention is equally without merit. The affidavit states that the plaintiff is the owner and holder of the mortgage, and that the consideration thereof is $500, with interest; that the "conditions" (meaning undoubtedly the consideration) thereof are that "deponent loaned on the day of the date hereof the sum of $500 to the said mortgagor, which said mortgagor has used to purchase much of the stock mentioned in the schedule herein." The fact that the affidavit thus attempts to account for the mortgagor's disposition of the consideration is not, as defendant contends, an infirmity in the affidavit, but may well be rejected as surplusage, and under the adjudication, in the absence of fraud, the affidavit would still be in substantial compliance with the requirements of the chattel mortgage act (P. L. 1902, p. 487). American Soda Water Co. v. Stolzenbach, 68 Atl. 1078. The judgment is affirmed, with costs. (75 N. J. E. 286) LOWENTHAL v. MYERS et al. DILL, J. This case presents cross-appeals from a chancery decree in an action of foreclosure, where the defense was usury. The vice chancellor, while finding that the mortgage was usurious in its inception, declared that he was unable, because of the conflicting testimony, to fix the amount which should be deducted from the face of the mortgage. The decree directed the payment of the face of the mortgage without interest, less $88.50 paid as interest and $75 paid for an extension of time of an installment due. Both sides appealed; the complainant because the decree declared the mortgage usurious, and the defendant Bauer because the decree did not determine the usurious amount. We agree with the vice chancellor that the mortgage was usurious in its inception, and that the subsequent payment of $88.50 as interest and the one of $75 to induce the complainant to defer a payment due upon the mortgage should be applied to a reduction of the principal of the mortgage. As to the amount of the usurious bonus, the testimony of the complainant was squarely in the face of that of the defendant Bauer. The vice chancellor, having an opportunity to observe the conduct and demeanor of the witnesses while testifying, which is often almost as important as the testimony itself, in this wage of oaths, accepted the testimony of Mrs. Bauer and rejected that of Lowenthal and his confrères as deliberately false in the interest of Lowenthal. We hold, as did the vice chancellor, that the transactions in the names of other parties were in fact Lowenthal's transactions, and that the names of other parties were used by him with a view to the furtherance of his illegal purpose. Furthermore, Lowenthal's adoption of craft and deceit in this hypothecation of the names of Cantor and others demonstrates that he was covering (Court of Errors and Appeals of New Jersey. up transactions which it was apparent even March 3, 1909.) USURY (§ 117*)—EVIDENCE. On the foreclosure of a mortgage the defendant set up in the answer the defense of usury. Held, that the proofs submitted sustained the defense, and that the defendant was entitled to a decree so adjudging. [Ed. Note.-For other cases, see Usury, Dec. Dig. 117.*] (Syllabus by the Court.) Appeal from Court of Chancery. Bill by Hyman Lowenthal against Jacob H. Myers and others. Decree for complainant for a part of the amount claimed, and both parties appeal. Affirmed on appeal of complainant and reversed for purposes of modification on the appeal of defendants. Edmund O. Gaskill, Jr., and Bourgeois & Sooy, for complainant. John C. Reed and to his mind would not stand the light of full investigation. Giving due weight to the findings of the vice chancellor "that the orig. inal contract was to pay a bonus for the loan, and that the bonus agreed upon was included in the amount of the mortgage," and that Mrs. Bauer was to be believed, and that Lowenthal, who denied such a bonus contract, was swearing falsely in his own inter est, we think it may fairly be considered to have been proved by Mrs. Bauer's testimony that the bonus was at least $450, nò other amount of bonus being at issue under the pleadings, and that Lowenthal deducted that amount from the proceeds of the mortgage. The suggestion that the bonus of $450 which Mrs. Bauer agreed that Lowenthal deduct was not in fact deducted by him is not at all persuasive, since it rests upon the unconvincing argument that Lowenthal,gether as one case, and the determination of whose character as usurer and as a witness one controls the disposition of the other, for the court below had correctly estimated, would make a condition of his loan that such bonus should be deducted and refrain from deducting it after all. Upon a fair and consistent consideration of the relative weight of the testimony, the retention of the bonus agreed upon was proved. It should therefore have been deducted from the amount due on the mortgage. The case presents indications of other elements of usury; but, as the testimony of Mrs. Bauer is not definite, it becomes a matter of strong inference, rather than a demonstrated fact. The complainant is entitled to no costs and no allowance in the court below. Upon the appeal of the complainant Lowenthal there should be an affirmance. As to the appeal of the defendant Emma T. Bauer, there should be a reversal for the purpose of modification as indicated in this opinion, with costs in this court to the defendant Bauer. The record is accordingly remitted to the Court of Chancery for the entry of a decree in accordance herewith. (76 N. J. L. 751) WILLIAM H. ATKINSON CO. v. JOHN SHIELDS CONST. CO. et al. (two cases). the only question presented in each case is whether the John Shields Construction Company has such an estate in the land as will support a mechanic's lien. The case was tried by the court, a jury having been waived, and it found that the construction company had such necessary estate in the land. The plaintiff's case rests upon the following facts: The Pennsylvania, New Jersey & New York Railroad Company, owning the fee of the land on which the building was erected, made a contract with the construction company to build a tunnel for it through a part of the land; and, in order to do this, it was necessary that the construction company bring upon the property of the railroad company the machinery required for that purpose, to protect which a building was erected, for which the plaintiff furnished materials and labor. ing insolvent, a receiver was appointed, by The construction company becomsold and removed from the property, but bewhom the buildings and machinery were fore insolvency the plaintiff filed a mechanic's lien and the receiver now holds the proceeds of the sale to satisfy the debt of the plaintiff if the lien is sustained; otherwise it is to be administered by the receiver with the other assets of the insolvent company. The lien was filed against the construction company as builder, and the Pennsylvania, (Court of Errors and Appeals of New Jersey. New Jersey & New York Railroad Company, March 1, 1909.) MECHANICS' LIENS (§ 16*)-PROPERTY SUBJECT-NATURE OF ESTATE. A railroad company contracted with a construction company for the building of a tunnel. In order to carry out the contract, it was necessary that the construction company bring upon the property of the railroad company machinery necessary for that purpose. The con tract between the parties provided, in substance, that the construction company might occupy a portion of the land for the purpose of carrying on the work, the area available for such use to be pointed out by the engineer of the railroad company. Held, that the occupation by the construction company was that of a licensee, and vested in it no estate in the land to which a mechanic's lien would attach. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 17; Dec. Dig. § 16.*] (Syllabus by the Court.) Error to Circuit Court, Hudson County. Actions by the William H. Atkinson Company against the John Shields Construction Company and others. Judgments for plaintiff, and defendants bring error. Reversed. Lindabury, Depue & Faulks, for plaintiffs in error. McDermott & Enright, for defendant in error. BERGEN, J. There are two cases between the same plaintiff and same defendants, in which precisely the same questions arise. They were argued and submitted to the John Shields Construction Company, and its receiver as owners. All of the defendants filed the statutory plea that the property was not subject to a mechanic's lien. There was a judgment in favor of the railroad company, and against the other defendants. It is conceded that under Coddingtion et al. v. Dry Dock Co., 31 N. J. Law, 477, the lien cannot be sustained unless the construction company had an estate in the land to which the lien would attach. That company had no fee in the land, and whether it had an estate sufficient to support a mechanic's lien depends entirely upon the nature of the possession given it by the railroad company, which is to be ascertained from the true interpretation required of section 214 of the contract between the parties, which reads as follows: "Two-thirds of the area of the Wee hawken shaft at grade level is turned over to the contractor for river tunnels. * The area at the surface adjacent to the shaft available for use by the contractor will be pointed out by the engineer." And also of section 335 which reads: "The contractor shall inclose all lands handed over to him by tight, substantial fences, at least 8 feet high, subject to the approval of the engineer and the regulations and requirements of the local governments." We do not agree with the conclusions *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 3. APPEARANCE (8 9*)-EFFECT-Severance of [Ed. Note.-For other cases, see Appearance, reached below that the construction company | court may separate the causes and order that took, under this contract, an estate in the they proceed as separate causes thereafter. land. On the contrary, we think that the [Ed. Note.-For other cases, see Action, Dec. Dig. § 60.*] right conferred was merely a license to enter and perform the work contracted for. The possession was not exclusive, but confined to an available use, which means only such use as was necessary for the contractor to make of it for the purpose of carrying on the work. No present estate in the land was given. It was a privilege to do a particular act upon the company's land, and there is nothing in the contract which shows that the railroad company intended to divest itself of possession, or that the licensee should come into occupancy as a tenant. The railroad company might at any time have arbitrarily abandoned the contract, and the right of the construction company would be to have a reasonable time to remove its machinery and buildings, with a right of action, if any existed, against the railroad company for breach of its contract. The relation between the railroad company and the construction company was simply that of employer and employé, with a license to the employé to occupy the land necessary for the work while performing it, and the situation is not unlike that where an owner, erecting a building, permits the contractor doing the work, and for his convenience, to put up a temporary building, either for the use of his men, or as a work shop, which merely confers a privilege to occupy under the owner, in which case it is a license. 25 Cyc. 640. In Eckert v. Peters, 55 N. J. Eq. 379, 36 Atl. 491, it was held that the right to "erect bathhouses and use the same free of charge, undisturbed at any time," passed no estate in the land, and was nothing more than a license. The construction company having no estate in the land, a mechanic's lien cannot be imposed upon the building (Leaver v. Kilmer, 71 N. J. Law, 291, 59 Atl. 643), and therefore the judgments in the two cases under review are reversed. (77 N. J. L. 275) DAVIS v. PUBLIC SERVICE CORPORA [Ed. Note. For other cases, see Pleading, Cent. Dig. § 225; Dec. Dig. § 106.*] 5. PLEADING (§ 306*)-VARIANCE WITH WRIT. of a variance between the writ and the declaraIn order for a defendant to avail himself tion, he must, under our practice, crave oyer of the writ. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 923; Dec. Dig. § 306.*] (Syllabus by the Court.) Action by Nehemiah Davis against the Public Service Corporation. On demurrer to replication. Case certified. Demurrer to replication ordered stricken on motion. Argued November term, 1908, before GUM MERE, C. J., and SWAYZE and TRENCH ARD, JJ. Wilson, Carr & Stackhouse, for plaintiff. E. A. Armstrong, for defendant. SWAYZE, J. Nehemiah Davis and Fannie C. Davis, his wife, brought an action against the Public Service Corporation to recover damages for an injury to the wife. The declaration contained two counts, one claiming for the damages suffered by the wife, and the other for the damages suffered by the husband. To this declaration there was a demurrer, upon the ground that the plaintiffs were improperly joined. The theory of the demurrant seems to have been that the law of this state was changed by the act of 1906 (P. L. p. 525). The circuit judge seems to have held that this demurrer was well taken. At any rate, he allowed a rule sustaining the demurrer-whether after argument and consideration does not appear-and thereupon, on motion of the attorneys for the plaintiff, gave them leave to amend their declaration by filing separate declarations for their several causes of action, and ordered that the actions be docketed by the clerk and proceed as separate actions. Separate declarations were filed by the two plaintiffs. To each of these declarations the defendant pleaded in abatement that it had been summoned to answer Fan2. ACTION (8 60*)-SEVERANCE OF ACTIONS. nie C. Davis and Nehemiah Davis jointly, After a demurrer to a joint declaration by and proceeded: "Wherefor, inasmuch as the husband and wife for an injury to the wife has been sustained on the ground of an improper said Fannie C. Davis and Nehemiah Davis joinder of parties plaintiff and actions, the are named together as plaintiffs in said TION. (Supreme Court of New Jersey. Feb. 23, 1909.) 1. HUSBAND AND WIFE (§ 209*)-ACTION BY WIFE-JOINT DECLARATION. The act of 1906 (P. L. p. 525) does not repeal or supersede section 21 of the practice act (P. L. 1903, p. 540), and it is still permissible for a married woman to sue jointly with her husband in actions ex delicto as at common law, and to add claims by the husband in his own right as permitted by that section. [Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 209.*] . |