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the property Mr. Collins bad suffered a par- the business was taken in charge by her alytic stroke, and remained an invalid there- mother, and she and her mother together after to the time of his death.

kept the books; that in August, 1901, her faDavid Fineberg, who purchased the prop- ther was taken sick, "had a stroke,” as she erty, testifies that he went to Collins' with put it, and that his illness lasted until his the idea of making the purchase, and talk- death. She did say that, while the paralyed with Mrs. Collins and asked for Mr. Col- sis affected him from the waist down, above lins, and Mrs. Collins took him into the back the waist his condition was perfect. She furroom, where her husband was lying on a ther testified that after the will was made couch; that he, the witness, tried to bave her father told her mother and her of its conversation with him, but he was a weak contents, and named the executor he had apman and referred him to Mrs. Collins, say- pointed, and her mother asked him if he ing he would be satisfied with what she did; could not get some one else (she apparently he said Mr. Collins was on his feet part of disliking Mr. Monoghan), and he said it could the time, but could not walk. He had to be changed, that he was not going to die walk alongside of the wall with one hand right away, and, being asked how he intendand with a cane in the other. The price of ed to change it, he said that he intended to the property was $6,000. On June 7, 1907, sell the place and when he sold it he would Fineberg made his check to the order of Colo give her the money, and then her mother lins for $1,000, and delivered it to Mrs. Col- seemed satisfied. At the time Mr. Comp was lins. On June 19, 1907, another check for at the place about the Centre street proper$3,763.25 was made by Lawrence Barden, ty she, the witness, said she heard Mr. Comp Fineberg's broker, to the order of the de- ask whose name was to go in the receipt, and fendant's solicitor. This check the solicitor her father said both names; and, when Mr. indorsed and handed to Mrs. Collins. The Comp asked how the property was to be paid check for $1,000 is indorsed by Mr. Collins for, her mother said by cash, her father beand by Mrs. Collins. The check for $3,763.- ing within hearing, and his hearing being 25 is indorsed by the solicitor and Mrs. Col- perfectly good. When her father indorsed lins, but not by Mr. Collins. Both checks the check for $1,000, he, according to the were deposited to Mrs. Collins' credit with witness, handed it to her mother, and said: the Trenton Saving Fund Society in a bank- take this check, and when you get the rest book of hers. At the time Fineberg paid the clear the Centre street property, put the rest $1,000 he went to the saloon and asked for of the money in bank in your own name, and possession (which he did not get until he you will always have a home; we don't know paid the balance), and he said he heard Mrs. what time the children are going back on us, Collins ask Mr. Collins what she would do and it won't be hard for us to live if our with the money, and he told her to take it house is clear." On another occasion she and put it in the bank to her own account, says she heard her father say to her mother: she had worked hard for it.

"Take the money and put it in your own Charles A. Comp, a real estate agent, went name, for you earned it; put it in your own to see Mr. and Mrs. Collins about selling a name and nobody can touch it.” On one ocproperty on Centre street. This was May casion, when her father and mother were 24, 1907, and as a result of a conversation discussing the purchase of the Centre street with Mrs. Collins which he says he presumes property and the sale of the saloon properMr. Collins heard for he was in an adjoining ty, she heard her father say to her mother: room where he and his wife had talked to- / "Take that money and clear it off, and when gether in the hearing of Mr. Comp, he de- we have a shelter it won't be hard for us to livered to Mr. Collins a receipt, reading that get a bite to eat; and put the rest of the he had received of Margaret Collins and money in your own name in bank, because Patrick Collins $10 as a deposit for the pur- you can't say when the children will go back chase of the brick house No. 631 Centre on us." She also said she heard her father street, for the sum of $4,000, to be free and say, when he sold the Union street propclear of all incumbrances. On June 7, 1907, erty, that that would leave Mr. Monogban a further payment of $100 was made to Mr. nothing to do as executor. Comp, for which he gave a receipt in the This, as I understand it, is the testimony names of Patrick and Margaret Collins, in upon which the defendant relies to establish which receipt it was stated that a mortgage a gift from her husband to her in his lifeon the property of $2,600 was to be assum- time of the proceeds of the sale of the saed, and the balance of the $4,000 was to be loon property. It should be mentioned that paid in cash. Mr. Comp was unable to re- the license was in the name of Mr. Collins, member any conversation at all with Patrick and that the bills were contracted in his Collins.

It is true that Mrs. Collins actually Julia Donlon, a daughter of Patrick Col- ran the business, hiring the help, paying the lins and of the defendant, his second wife, bills, and working herself, including bartestified that her father started the saloon tending. This did not make the business business about 1899 or 1900 and ran it a year bers. It was started by her husband and or so, but gave too much credit and became conducted by him, at least for some time. and dutiful wife would do, if she were able; | they so lived together, and while none but that is, ran her husband's business after he the wife and her brothers were about him, became incapacitated by disease.

name.

without the advice of disinterested counselOn June 7, 1907, a formal agreement for ors, the old man made the gifts of which she the purchase of the Centre street property was the recipient. How entirely parallel the was entered into, and although it was, as is case at bar is to that of Haydock v. Hay usual, written to be executed by both par- dock. Collins was a man of some years and ties, it was signed only by the owners. It feeble in body, and his mind, though not dewas in the names of Margaret and Patrick throned, was undoubtedly susceptible of domCollins. Their attorney, before its delivery, ination. His wife was the one upon whom changed the provision for the payment of the he naturally leaned, and he certainly submitbalance of the $4,000 in cash upon the deliv- ted himself to her control, and while living ery of the deed to an undertaking on the part in the house with her and their daughter, of the grantees to assume the payment of a and without the advice of disinterested counmortgage for $2,600 on the premises, the dif- sel, he is said to have made the gift which ference to be paid in cash. The reason for stripped him of all his worldly possessions, this was that David Fineberg had been un- without the power of recall. able to raise the balance of the purchase- Where parties are in a position in which money required to be paid by him upon the one is more or less dependent upon the othpurchase of the saloon property. The deed er, courts of equity hold that the weaker for the Centre street property to Margaret party must be protected, and they set aside and Patrick Collins, although dated on the his gifts if he had not proper advice indeday of the agreement June 7, 1907, was not pendently of the other. Haydock v. Haydelivered for some time afterward, as it had dock, 34 N. J. Eq. 570, 575, 38 Am. Rep. 385. to be sent to Minnesota to procure an ac- The case of Slack v. Rees, 66 N. J. Eq. 447, knowledgment. It was offered in evidence, 59 Atl. 466, 69 L. R. A. 393, absolutely conand contains an assumption of the $2,600 trols this case in this regard. In that case it mortgage just mentioned. The difference be- was held that the rule that a deed of gift tween that amount and the purchase price containing no power of revocation will be of $4,000, namely, $1,400, was paid in cash. set aside where a relation of trust and conIt is perfectly apparent that Patrick Collins fidence exists between donor and donee, and intended to purchase, and did purchase in the donor has no independent advice as to the joint names of himself and wife), the the effect of the deed upon his own interest Centre street property out of the proceeds of in the subject-matter of the gift, applies to the sale of his saloon property. His inten- an irrevocable conveyance made by an aged tion was to spend $4,000 out of those pro- and infirm father, without independent and ceeds in that way. Assuming that the plac- competent advice, to a daughter with whom ing of the title to the Centre street property he lives and upon whose care his well-being in the joint names of his wife and himself depends. Now, in the case under considerawas bis own volitional act—and I must as- tion, if Patrick Collins had sought to besume it was, for the contrary is not proved- stow the saloon property upon his wife by the transaction of itself is an absolute refu- a solemn conveyance of the title under the tation of the idea that he made a gift of the forms of law, it would certainly be set proceeds of the sale of the saloon property aside by this court, unless it could be shown to his wife. She does not claim a gift of the that he had independent and competent adbalance between the price of the Centre vice as to the nature and effect of the gift street property, incumbered or unincumber- he was to make. Surely the gift of the ed, but a gift of the entire proceeds of the proceeds of the sale of that property in the sale of the saloon.

most informal manner, namely, by mere But, irrespective of the force and effect of word of mouth, must be set aside for the the purchase of the Centre street property same reason, in the face of his decrepitude as negativing any gift of the proceeds of sale and position of dependency upon his wife, of the saloon property to the wife, the facts which is so apparent. Furthermore, the lanrelied upon by her to show such gift, in my guage relied upon as establishing the gift judgment, entirely fail to substantiate her from husband to wife in this case does not claim. In Haydock v. Haydock, 34. N. J. Eq. in my judgment bear the interpretation put 570, 38 Am. Rep. 385, Mr. Justice Reed, upon it by counsel for the defendant. There speaking for the Court of Errors and Ap- is no clear-cut, unambiguous, and unequivopeals, said, at page 574 of 34 N. J. Eq. (38 Am. cal declaration of a gift, but statements Rep. 385), that if it be admitted that the do- made which are equally, if not more, sus

was a person who possessed sufficient ceptible of an intention to retain the propmental power to make a gift, yet it was upon erty than to give it away. True it is that the recipient of the gift to show the fairness Fineberg said that the deceased, in answer of the transaction; all the evidence showed to a question by his wife as to what she that the wife was the one upon whom he should do with the money, said: "Take it naturally leaned, and he submitted himself yourself and put it in the bank to your own to the control of her who naturally and nec- account; you worked hard for it.” This

nor

to his wife as and for her sole and individ-, her of showing the fairness of the gift in ual property. The language is entirely con- question, nor did she show that the donor sistent with a desire on his part that she had competent and independent advice in should be the custodian of his money. And the making of it. For these reasons the it is true, doubtless, that she worked for it, gift fails. helped earn it, by running his business There was another question presented on through her devotion to him. How she help- the argument by counsel for the defendant, ed earn it, however, does not appear. It and that is whether, if the gift failed, the may be that through her management his executor should not be charged with the business prospered and he was thereby en- duty of paying the mortgage upon the Cenabled to pay off some mortgage or discharge tre street property which was assumed in indebtedness otherwise incurred, or perhaps the deed of conveyance. The rule, as I It was that her efforts prevented a failure understand it, is that land incumbered by in business and consequent loss of the prop- a mortgage, the payment of which is aserty through that sort of misfortune. She sumed by the grantee in the deed of conveywas, of course, interested in the fund, and ance therefor, is not to be paid by the ex. they both reasonably expected that she as ecutor of the grantee in favor of the heir or well as he would get a living from it, at devisee, unless the decedent shall have asleast in part. This assertion is not mere sumed the debt in such manner as to show speculation, for the daughter testifies that an intention to charge his personal estate. her father said to her mother: "Take that Mount v. Van Ness, 33 N. J. Eq. 262; MC money and clear It off (meaning, doubtless, Lenahan v. McLenahan, 18 N. J. Eq. 101 ; the mortgage on the Centre street property), Campbell V. Campbell, 30 N. J. Eq. 415; and when we have a shelter it won't be De Grauw v. Mechan, 48 N. J. Eq. 219, 223, hard for us to get a bite to eat; and put the 21 Atl. 193; Hetzel v. Hetzel (Ch., October rest of the money in your own name in bank, term, 1908, not yet reported), 71 Atl. 755. because you can't say when the children

If the defendant is entitled to have this will go back on us." In one only of the mortgage paid by the executor in exonerastatements which the daughter says she tton of the land, so that she can enjoy the heard her father make did he not include premises which are now hers (by virtue of himself in the mention of the money. The her survivorship of the tenancy by the enstatement was this: "Take the money and tirety which was in her and her husband put it in your own name, for you earned during his lifetime), the relief can only be it; put it in your own name, and nobody afforded upon a cross-bill, and there is no can touch it." Now, if nobody could touch such pleading in the case. I will hear coun. it, certainly the wife could not touch it for sel for the defendant upon notice to the the purpose of consuming it as her own. complainant, on an application for leave to Even if this statement, standing alone, Ale a cross-bill, raising this question, if he would be sufficient evidence of the gift said

so desires. In the present posture of the to have been made, it cannot be so used, pleadings it is impossible to grant the debecause it must be read in connection with

fendant any affirmative relief. other statements made by the deceased to

There must be a decree for the complain. the same witness, and which other state ant adjudging her to hold the balance of the ments, as seen, disclose no gift, but rather purchase money received upon the sale of an intention to retain control over his mon- the saloon property as trustee for the comey. Smith v. Burnet, 35 N. J. Eq. 314, was a case in which an executor claimed certain plainant as executor of the will of her hus. shares of stock by way of gift from his de- band, and requiring her to turn over those ceased testator; the proof adduced to sup- the Trenton Saving Fund Society to honor

moneys to him, and requiring the defendant port the claim was the testimony of a wit- the check of the defendant to be made in ness who had heard the deceased say that he had given the stock to the executor. Mr. pursuance of the decree. Justice Reed, speaking for the Court of Errors and Appeals, said, at page 324 of 35

(75 N. J. E. 20) N. J. Eq., that the word "give” is often MAYOR, ETC., OF CITY OF NEWARK v. used with other meaning than as evincing

ERIE R. 00. et al. an intent to confer the title in the thing delivered (giving instances in which the word (Court of Charcery of New Jersey. Dec. 4,

1908.) may be otherwise used); and he well says that this view, together with the difficulty 1. EQUITY ($_44*) — EXCLUSIVE JURISDICTION

-CONFLICTING EASEMENTS. of recalling or stating with accuracy all A case involving the rights of the parties in that was said, and how it was said, should case of conflicting easements is one of equitacause such a declaration to be closely scruti- ble, and not of legal, cognizance, and apper. nized before a title is passed solely upon tains to the exclusive, and not auxiliary or con.

current, jurisdiction of chancery. such evidence. The defendant did not dis

(Ed. Note.---For other cases, see Equity, Cent. charge the burden which the law casts upon Dig. $8 141-145; Dec. Dig. § 44.*]

way in

2. EASEMENTS (8 61*)-JURISDICTION OF EQUI- | 10. RAILROADS (8 93*) RIGHTS AT GRADE TY-SCOPE OF REMEDY.

CROSSINGS-LIMITATIONS. The case of the rights of two tenants in Tracks cannot be built over a street, or uscommon of an easement is one of equitable cog- ed thereon for the convenience of factory or nizance, and equity may use any remeds appro- yard or station purposes, and thus injuriously priate to the circumstances, either preventive affect the public traffic over the highway. or mandatory, adequate to promote and secure [Ed. Note.-For other cases, see Railroads, the joint user in such a way as the law requires Cent. Dig. 88 260, 264; Dec. Dig. § 93.*] in view of the particular situation.

11. RAILROADS (8 93*) RIGHTS AT GRADE (Ed. Note.-For other cases, see Easements,

CROSSINGS-LIMITATIONS. Cent. Dig. $8 131, 134-137; Dec. Dig. $ 61.*]

The right of a railroad over a highway is 3. EASEMENTS (8 61*)—RIGHTS OF TENANTS IN a right of passage, with its reasonable incidents, COMMON-TEST OF EQUITY JURISDICTION. and nothing more.

The test of equity jurisdiction in a case [Ed. Note.-For other cases, see Railroads, affecting the rights of tenants in common of an Cent. Dig. $ 264; Dec. Dig. $ 93.*] easement is the existence of actual conflict;

GRADE CROSSINGSand if there is no conflict, there is no juris. 12. RAILROADS_(8_99*) diction.

NECESSITY OF ELEVATING TRACKS Evi

DENCE. [Ed. Note.-For other cases, see Fasements,

Evidence held not to show that a railroad Cent. Dig. $$ 131, 134-137; Dec. Dig. $ 61.*]

elevation over a street was the onl 4. CORPORATIONS (8 393*)–COMPELLING PER- which joint user could be properly secured and FORMANCE OF CORPORATE DUTY-REMEDY AT enjoyed. LAW.

[Ed. Note.-For other cases, see Railroads, The Court of Chancery does not ordinarily Cent. Dig. $ 300; Dec. Dig. $ 99.*] compel a corporation to do its duty, the per: 13. RAILROADS (8 99*) – GRADE CROSSINGS formance of which, neglected or contested, is

UNLAWFUL OBSTRUCTIONS RELIEF IN enforced by the Supreme Court by mandamus.

EQUITY. (Fd. Note.-For other cases, see Corporations,

A bill praying, not only for the depression Cent. Dig. $ 1575; Dec. Dig. § 393.*)

or elevation of railway tracks at a street cross5. RAILROADS ($ 99*) - GRADE CROSSINGS ing, but also for general relief, is broad enough

COMPELLING ELEVATION OF TRACKS JURIS- to warrant an injunction against the use in DICTION OF EQUITY.

the highway of certain tracks illegally obstructThe Court of Chancery has power to coming the way, and the unlawful use of another pel railroad elevation over highways, if that track for an unauthorized purpose. is the only way in which joint user can be [Ed. Note. For other cases, see Railroads, properly secured and enjoyed.

Cent. Dig. $$ 299, 300, 302; Dec. Dig. $ 99.*) (Ed. Note.-For other cases, see Railroads, Cent. Dig. $ 299; Dec. Dig. $ 99.*]

Bill by the Mayor and Common Council of 6. RAILROADS (8 99*) - GRADE CROSSINGS

the City of Newark against the Erie RailCOMPELLING ELEVATION OF TRACKS.

road Company and others. Findings for comIn view of the legislation of this state plainant. recognizing that railroads may cross streets at grade, it cannot be held that grade crossings are Joseph Coult, for complainant Cortlandt per se illegal structures even in cities, or that Parker and Charles Corbin, for defendants. streets are not safe, in the legislative sense of that word, merely because they are crossed at grade by a railroad crossing, but the situation

STEVENS, V. C. This is a bill to compel must be such that nothing but track elevation will protect the public.

the defendant companies to elevate their (Ed. Note.-For other cases, see Railroads, tracts where they cross Summer avenue, in Cent. Dig. § 293; Dec, Dig. $ 99.*]

the city of Newark. The bill was demurred 7. RAILROADS ($ 99*) GRADE CROSSINGS to, and the demurrer was overruled. Newark MORE THAN ONE TRACK OVER STREETS.

v. Erie R. R. (N. J. Ch.) 68 Atl. 413. In overIt cannot be maintained that streets, become ruling it Chancellor Magie reaffirmed the unsafe and inconvenient when more than one track is laid across them,

rule laid down by Beasley, C. J., in State v. (Ed. Note. For other cases. see Railroads, Central Railroad Co., 32 N. J. Law, 220, to Cent. Dig. § 293; Dec. Dig. $ 99.*]

the effect that the duty imposed upon rail8. RAILROADS ($ 99*)—GRADE CROSSINGS-RE- roads whose charter provisions are similar STRAINING EXCESSIVE USE.

If a street is so incumbered with railroad to those of the Central Railroad is to “keep tracks that the public is practically shut out at all times and under all circumstances the from using it. the appropriate remedy in such public highways, at the point where they a case is an injunction restraining their exces

cross the railroad, in a condition fit for safe sive use; neither party being at liberty to de- and convenient use." Both the Supreme stroy the right of the other.

[Ed. Note. -For other cases, see Railroads, Court and this court have approved the rule Cent. Dig. 88 293, 299; Dec. Dig. $ 99.*] in the numerous cases cited by the Chancel9. RAILROADS (8 99*)—GRADE CROSSINGS-EL- lor. If there was any doubt about its corEVATION OF TRACKS.

rectness, that doubt has been set at rest by If the number of tracks crossing a street the recent decision of the Court of Errors in be not excessive, the question whether trains Borough of Metuchen v. Penn. R. R. Co. run over them with such frequency and such speed, and at such an angle or with such curves. (N. J.) 69 Atl. 465. that the joint user of the crossing would be The act of 1898 (Laws 1898, p. 110, c. 66) practically gone, and so necessitate elevation of does not confer upon this court the power to the tracks, is one of fact, to be determined ac- abolish grade crossings. It merely authorizes cording to the circumstances of the case. [Ed. Note.-For other cases, see Railroads,

it to make reasonable provision for their Cent. Dig. 293 ; Dec. Dig. $ 99.*]

protection. The act, is in terms, limited to cases where the public road or highway "is, this court, that section 29 gave this court crossed by a railroad track at the same grade jurisdiction to make an order directing the or level." The effect of the act was con- company to so reconstruct and lengthen its sidered in Palmyra v. Penn. R. R., 62 N. J. bridge that the public might have the use Eq. 611, 50 Atl. 369, Id., 63 N. J. Eq. 799, 52 of the highway to its full width. The Court Atl. 1132, and in Eckert v. Perth Amboy & of Errors (69 Atl. 465) sustained the Vice Woodbridge R. R. Co., 66 N. J. Eq. 437, 57 Chancellor in his view of the jurisdiction Atl. 438. Section 29 of the general railroad conferred, but differed with him on the quesact (Laws 1903, p. 660) is, however, held by tion of fact. Chancellor Magie, in his opinion overruling Section 29 contains two clauses. The first the demurrer (68 Atl. 415), to authorize the authorizes the governing body of the towncourt to decree track elevation. The section ship or municipality to construct and repair reads as follows: "When any company shall "bridges and other crossings” if the company not properly construct and maintain the shall not properly construct and maintain bridges or other crossings of highways by its them. I think it may be doubted whether railroad tracks as required by law, it shall this clause would be held to confer upon mube lawful for the governing body of the town- nicipalities the right, after notice, to intership or municipality wherein such crossings fere with the company's rails, and with the are located, within a reasonable time, after structure supporting those rails, or to give notice to the company, to construct or repair it the right to change the grade of the railsuch bridges or other crossings and the cost road. The words, taken according to their thereof may be collected from the company natural import, would seem to authorize muwhose duty it is to make such construction or nicipalities to build bridges over cuts, to repair by action in any court of competent plank between the rails, and to do such other jurisdiction; or in lieu of such construction acts as would interfere little, if at all, with or repair, the township or municipality may the exclusive control exercised by the company proceed by a suit in equity to compel the over its roadbed. The second clause of secspecific performance of the duties imposed tion 29—the part that was construed by this by law upon such company with respect to court and the Court of Errors—gives the the construction, maintenance and repair of township, in lieu of such construction and such bridges and crossings and the court repair, the right to proceed by a suit in shall prescribe the crossing to be constructed equity to compel the specific performance of or the repairs to be made and in order to the duties imposed by law upon the railroad enforce obedience to its decree or mandate, company "with respect to the construction, the court may restrain the exercise of any maintenance and repair of such bridges and of the franchises of the company or adoptcrossings”; i. e., such bridges and crossings such other remedies as may be in accordance as the company did not properly “construct with the practice of the court." Referring and maintain.” As the same words "conto this section the Chancellor says: “The struct” and “maintain" and "repair" are claim that no statutory jurisdiction has been found in both clauses, it might be argued conferred on this court to prescribe the cross- with some plausibility that the second clause ing to be constructed, if any railroad compa- was intended to apply to the same classes of ny shall not properly construct bridges or cases that the first clause was. But this other crossings of highways as required by view appears to have been rejected, not only law, may be for the present passed by, with here, but in the Court of Errors, unless we the observation that, by section 29, Revised take the view that power is given to the muRailroad Act 1903, the Legislature has under- nicipality to interfere with the grade and taken to confer, and has conferred, by lan- structure of the roadbed. Gummere, C. J., guage which is incapable of any other con- says: “The grounds which led the learned struction, precisely the jurisdiction in ques- Vice Chancellor to the conclusion that the tion. It is contended, however, that in so matters involved in the litigation were cog. doing, the Legislature exceeded its constitu- nizable in the Court of Chancery are fully tional powers.

This contention will bere- set out in his opinion, and we concur in the after be considered. That the twenty-ninth views expressed by him upon this point and section of the act above cited does, by its in his conclusion." The Vice Chancellor in terms, confer such jurisdiction has been set- his opinion had said: “The power of the tled in this court. Penn, R. R. Co. v. Metu- court to compel by mandatory proceedings the chen (N. J. Ch.) 64 Atl. 484.” The case re- railroad corporation to do its duty in this referred to was one in which a bill had been spect (i. e., to widen its bridges and remove filed, by the borough of Metuchen against the a part of its embankment) rests, so far as I company, to compel it to widen a bridge over am aware, wholly upon the statute of 1903." a highway, its tracks being laid upon this Had it not been for this expression of opinbridge. It appeared that the railroad bad ion, I should have thought that the power originally crossed the highway at grade, but might have been referred to the jurisdiction that the company had elevated its tracks, exercisable in the case of conflicting easeand in so doing had narrowed the highway by ments. Del. Lack. & West. R. R. Co. v. placing abutments therein and otherwise con- Erie R. R. Co., 21 N. J. Eq. 302; Nat.

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