Bayliss v. Newark and Hackensack Traction Co.

the tracks through there." He notified the foreman that he could not proceed further with raising the tracks through the borough; that they were already above the surface of the street, and that he would not, as mayor of the borough, permit them to be raised to any higher elevation.

The company then applied to the court of chancery and procured an order to show cause, with a restraining order, commanding the mayor and council to desist and refrain from interfering with the work of the company on their tracks in the borough. This injunction was afterwards made perpetual. The company had no further or greater authority in the avenue than was granted to it by the ordinance. They were required, under its terms, to maintain the tracks so that they should conform to the surface of the avenue. It appears that the rails were at that time beyond the restrictions of the ordinance and above the surface of the street, and the mayor was informed by the foreman in charge of the workmen that they were in the act of raising them still higher. As the executive officer of the borough he directed them to stop the work and forbade further raising of the tracks. No force or violence was used, and the mayor does not appear to have done any improper or unlawful act. He was justified, from the information he received, in forbidding further elevation of the tracks and in ordering the work thereon to stop. The facts do not justify the interference of the court of chancery, and the injunction should be dissolved and the bill dismissed.

For reversal-VAN SYCKEL, DIXON, GARRISON, GUMMERE, COLLINS, GARRETSON, HENDRICKSON, BOGERT, KRUEGER, ADAMS, VREDENBURGH, VOORHEES, VROOM-13.

For affirmance-None.

Bernheimer v. Verdon.

SIMON E. BERNHEIMER et al.

υ.

WILLIAM P. VERDON et al.

[Filed June 19th, 1901.]

On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 49 Atl. Rep. 752.

Mr. John J. Fallon, for Bernheimer.

Mr. Robert S. Hudspeth, for Verdon.

PER CURIAM.

The decree appealed from by both sides in this case is affirmed, for the reasons given in the court of chancery, except that the date of January 31st, 1900, stated by mistake in the decree, should be changed to January 31st, 1899.

For affirmance-THE CHIEF-JUSTICE, VAN SYCKEL, DIXON, GARRISON, GUMMERE, COLLINS, FORT, GARRETSON, HENDRICKSON, BOGERT, KRUEGER, ADAMS, VREDENBURGH, VOORHEES, VROOM-15.

For reversal-None.

CASES ADJUDGED

IN THE

COURT OF ERRORS AND APPEALS

OF THE

STATE OF NEW JERSEY,

ON APPEAL FROM THE COURT OF CHANCERY,
AND THE PREROGATIVE COURT.

JUNE TERM, 1901.

RICHARD D. NORTON, complainant and respondent,

63 313 64 221

υ.

JOHN SINKHORN and CHARLES B. WALTON, partners, &c., defendants and appellants.

Norton v. Sinkhorn.

a lien claimant, can be given. Nor does the statute provide for a judgment against a municipality in case the amount due to the contractor exceeds the sums due to the lien claimants.

2. In the suit under this statute the court is required to determine the validity of each lien claimed, the amount due from the municipality to the contractor under his contract, and from the contractor to the respective claimants, and by a decree or order direct the municipality to pay out of the sum found to be due from the municipality to the contractor, to the several claimants, for work done and materials furnished in the execution of said contract, so much as will satisfy their liens or claims, to the extent of the amount due from the municipality to the contractor. The act, does not provide for any judgment or decree in favor of the claimants for any balance that may remain due after the fund is exhausted.

3. A set-off with respect to the rights and liabilities of the parties to the suit is considered as a cross action brought by the defendant. The right of set-off is restricted to liquidated damages. If the amount found due to the defendants from the plaintiff shall equal or exceed the amount due the plaintiff on his cause of action, the defendant shall be entitled to a verdict and judgment; and in case the amount due to the defendant shall exceed the amount which shall be due to the plaintiff, the defendant shall have judgment for such excess.

4. Recoupment is a claim in abatement of the damages to be recovered by the plaintiff by reason of the plaintiff's failure to perform obligations which, by the same contract, devolved upon him, whereby the defendant has sustained damages. It applies to cases where the damages are unliquidated as well as where they may be considered liquidated.

5. The complainant's bill set out that the complainant had performed labor and furnished materials, namely, stone, to the contractors, in and about the work of macadamizing and grading a public road under a contract by the defendants with the board of freeholders of the county of M. To this bill the contractors filed an answer, setting up an abatement of the amount alleged to be due from their firm to the complainant because the defendants were obliged to pay the sum of $684 for demurrage to a railroad company on carloads of stone shipped by the defendants, which, by the contract, the complainant was obliged to haul and distribute upon said road, but which the complainant allowed to remain at said stations an undue length of time, thereby subjecting the same to the charge for demurrage aforesaid which the defendants were obliged to pay.-Held, (1) that this is not a claim by way of set-off, but is a claim of recoupment for unliquidated damages; (2) that this claim was properly made in the answer. It was also made in the answer by way of cross-bill, which was properly struck out, for the reason that in the proceeding under this statute there could be no judgment in favor of the complainant as against the contractor as a debtor.

6. The order of the chancellor striking out that part of the answer is reversed; the order striking out the answer by way of cross-bill is affirmed, and an order should be entered that the fund be retained in the court of chancery and the case be allowed to stand over until the defendants shall have their damages, arising from the breach of contract by the complainant set out in the answer, assessed in a court of law, within such time and in such manner as the court of chancery may direct.

Norton v. Sinkhorn.

On appeal from an order advised by Vice-Chancellor Grey striking out part of the defendants' answer and dismissing crossbill. See opinion reported in 16 Dick. Ch. Rep. 508.

Messrs. Beasley & Walker, for the appellants.

Mr. Linton Satterthwait, for the respondent.

The opinion of the court was delivered by

DEPUE, CHIEF-JUSTICE.

The facts of this case are so fully set out in the opinion of Vice-Chancellor Grey that a brief statement is all that will be necessary here. Briefly, the case is this: The defendants, Sinkhorn & Company, entered into a contract with the board of chosen freeholders of the county of Mercer on the 24th of March, 1900, for the grading and macadamizing of a public road in the county of Mercer. The firm entered upon the performance of the contract and completed it on or about the 27th of October, 1900. The bill charges that, under the contract, the sum of $3,000 was due and payable by the board of freeholders upon the completion and acceptance of the work of macadamizing said road. It also charges that between September 1st. 1900, and October 28th, 1900, the complainant, Norton, performed labor for the said Sinkhorn & Company in and about the work of macadamizing and grading said road and towards the completion and performance of said contract with the board of freeholders, by furnishing to them teams and drivers and carting stone and other materials, and that he sold and delivered to Sinkhorn & Company certain materials which were used in the performance and completion of the road, under said contract, to the amount of $862.50. The bill further charges that on or about the 29th of October, 1900, and within fifteen days after the completion of said work, the complainant filed with the director of the board of freeholders, and with the collector and financial officer of said county, a notice that the complainant claimed a lien on the moneys in the hands or under the control of the board of freeholders of the county of Mercer, due or to