Atlantic City v. Young & McShea Amusement Co. a common stockholder, I do not see that he has any right to question the plan. The difference in the status was not suggested at the argument, and if counsel desires to be heard further upon that point of view, I will delay the decision of this case, otherwise I will advise an order that the application for preliminary injunction be denied. PER CURIAM. For the reasons given in the opinion of Justice Van Syckel, in the case of Berger v. United States Steel Corporation, ante p. 809, the order of the court of chancery is affirmed, with costs in this court and the court below. For affirmance-THE CHIEF-JUSTICE, VAN SYCKEL, COLLINS, FORT, GARRETSON, HENDRICKSON, BOGERT, VROOM-8. For reversal-GARRISON, PITNEY, VOORHEES-3. ATLANTIC CITY, complainant and respondent, v. THE YOUNG & MCSHEA AMUSEMENT COMPANY, defendants and appellants. [Filed October 20th, 1902.] It is provided in a conveyance of a strip of sixty feet of land by defendants to the complainant that the defendants shall not be prohibited from building a pier in front of their property and connecting the same to the new walk about to be erected by the complainant on said strip of land, and upon the further condition that the said pier shall be at least one thousand feet in length, extending into the ocean beyond the present sixty-feet-wide strip, and constructed of iron or steel, and that the defendants shall not permit the sale of any commodity upon the same, and be confined to charging only an entrance fee.-Held, that this proviso in all its parts applies only to a pier erected in the future, and has no relation to a pier existing at the time of the said conveyance. On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 17 Dick. Ch. Rep. 147. Atlantic City v. Young & McShea Amusement Co. Mr. Clarence L. Cole, for the appellants. Messrs. Godfrey & Godfrey, for the respondent. The opinion of the court was delivered by VAN SYCKEL, J. By an agreement executed in April, 1896, between the parties hereto, the defendants conveyed to Atlantic City a strip of land sixty feet in width for the purposes of a boardwalk to be constructed along the ocean front by the city. At the time this agreement was entered into the defendants had erected a pier, of wood, upon their lands between the ocean and the said sixty-feet-wide strip of land. The provision in the agreement, so far as it relates to the present controversy, is as follows: "It is hereby covenanted and agreed that the said sixty-feet strip shall be used for no other purpose than that of a street and a public board or steel walk; and that the grantors hereto shall have at all times the right to connect their and each of their buildings with the said boardwalk on the land or northwest side thereof; and that Atlantic City shall not remove or cause to be removed, nor permit its servants and agents, or any other person or persons to remove any sand from said sixty-feet-wide street; and that the boardwalk to be built on said sixty-feet-wide strip shall be elevated where it crosses the streets and avenues of Atlantic City to such height as will allow the grantors hereto free and unobstructed passage under the same with horses and wagons for the purpose of carting sand or driving with covered wagons. Provided, however, that the within grantors shall not be prohibited from building a pier in front of their property and connecting the same to the new walk about to be erected, and upon the further condition that the said pier shall be at least one thousand feet in length, extending into the ocean beyond the present sixty-feet-wide strip, and constructed of iron or steel, and shall not permit the sale of any commodity upon the same and be confined to charging only an entrance fee." * * * The bill is filed to restrain the defendants from selling or permitting any commodity to be sold upon said previously-existing pier, and from selling the right or charging an additional fee for admission to the privileges of any particular part or place on said pier, in addition to an entrance fee, or after entrance on said pier. Atlantic City v. Young & McShea Amusement Co. The defendants appealed from the decree of the court of chancery granting the injunction prayed for. The case of the complainant rests upon the proviso above set forth. It is clear that the proviso relates exclusively to a pier to be erected in the future, and that, so long as no other pier than the one then existing should be built, the proviso could not impair or affect the rights of the defendants in the old pier. The agreement "that the defendants shall not be prohibited from building a pier" is equivalent to saying that they may build; in the absence of prohibition in the terms of the contract, there is nothing to deprive them of that right. It is not until the right to build a new pier is exercised by the defendants that the proviso has any effect. Then the restraint laid upon the defendants is that such new pier shall be at least one thousand feet in length, to be constructed of iron or steel, and that the defendants shall not permit the sale of any commodity upon the same, and shall be confined to charging only an entrance fee. Obviously all these conditions apply to the pier which may thereafter be constructed, and cannot be extended beyond the clear meaning of the language used in the contract. That the defendants shall not be prohibited from building a pier cannot be construed to inhibit them from using and maintaining one already built. In that they had a right of property which they have not in any respect surrendered to the city. The complainant has shown no right to interfere with the defendants in the use of the old pier as fully as they enjoyed it before the execution of the agreement of 1896. The decree appealed from should be reversed, with costs in this court and in the court below. For reversal-THE CHIEF-JUSTICE, VAN SYCKEL, DIXON, GARRISON, COLLINS, FORT, GARRETSON, HENDRICKSON, PITNEY, BOGERT, ADAMS, VOORHEES-12. For affirmance-None. Gifford v. McGuinness. ELEANOR C. GIFFORD et al., complainants, v. THOMAS MCGUINNESS et al., defendants. [Argued June 26th, 1902. Decided July 7th, 1902. On appeal of Thomas F. McLaughlin, a defendant. 1. The court out of which an execution issues may at its discretion order paid into court money which by the terms of the writ is payable to a person named. 2. No substantial grievance is inflicted by permitting, without previous prima facie proof, a judicial inquiry into the truth of allegations on which it is sought to correct an adjudication. On appeal from an order of the chancellor, dated April 15th, 1902, who filed no opinion. The decree, taken pro confesso, of the court of chancery, on foreclosure of mortgage on lands of Thomas McGuinness, adjudged, upon an ex parte report of a master, that there was due (1) to the complainants, the holders of the mortgage, $7,933.33, and (2) to the defendant Thomas F. McLaughlin, as a judgment creditor of McGuinness, $6,169.40, and ordered a sale, by fieri facias, of the mortgaged lands, to satisfy costs and said debtsthe surplus proceeds, if any, to be brought into court, unless otherwise previously disposed of by order of the court. The writ issued on this decree, on May 28th, 1901, commanded sale and payment of costs and the sums adjudged to the respective parties entitled thereto, in the order named, and directed the sheriff to have those moneys in court at the October Term to render to said parties and also the surplus money, if any. At a sale advertised under such writ the property was struck off for $17,500 to McLaughlin, on conditions requiring the payment of ten per centum of the purchase-money down and the residue thereof on a day named. Pending the passing of title the de Gifford v. McGuinness. fendant Mary Ellen McGuinness, wife of Thomas McGuinness, presented to the chancellor a petition setting forth that she had inchoate dower in the land sold, and also that, after the decree in foreclosure, she had procured, in the same court, a decree against her husband for weekly alimony and for counsel fee, and, for the enforcement thereof, a writ of sequestration of his personal estate and the rents of his real estate; that the judgment of McLaughlin was collusive, being contrived by her husband on a fictitious debt, in order to defeat her rights in the premises, and that her husband was the real purchaser at the sale. Under the prayer of this petition, verified on information and belief, the chancellor, ex parte, made an order referring to a master the ascertainment of the truth of its allegations and directing the sheriff to pay into court all the proceeds of his sale above the amount due the complainants; and, afterwards, denied an application by McLaughlin to discharge or modify such order. Whereupon McLaughlin appealed to this court. Mr. John J. Hubbell, for the appellant. Mr. Marshall W. Van Winkle, for the respondent. The opinion of the court was delivered by COLLINS, J. So far as payment into court is concerned, the order appealed from was entirely discretionary with the chancellor, and is not subject to review. Originally, under an execution of the tenor of that under which the sale was made, framed, as it was, on the common law fieri facias, payment could only be made publicly in court by the sheriff or other officer executing the writ. A relaxation of this strictness, permitting payment out of court and the acceptance, in lieu of cash, of the receipt of the party entitled to payment under the judgment or decree-which became almost a matter of course where such party was the purchaser-led to the contention that neither the officer nor the court could adopt any other course. This contention was effectually disposed of by Chief-Justice Hornblower, in the supreme |