Petitioner is the father of three children: Day Nursery with his other two children. John, now nine years of age; Mary, the But the charge of that institution against subject of this controversy, now seven years petitioner will then be $3 per week which, of age; and Peter, now five years of age. if paid, will leave petitioner with but $2 The wife of petitioner, mother of these chil- per week for his own support; it is obviousdren, is insane, and is confined in the Cam-ly impossible for petitioner to pay the necden County Insane Asylum at Blackwood. Petitioner is a man of extremely dull comprehension, and at this time is without means or employment. When in health his earning capacity is about $8 or $9 per week. An accident has incapacitated him from labor, and he is at this time receiving $5 per week under the Employers' Compensation Act; this constitutes his entire present and prospective income until such time as he may again become physically able to work. He occupies a single room, in which he sleeps and prepares his meals. essary charges of that institution and live. The situation thus presented, like most cases of this class, invokes the exercise of a higher degree of judgment upon the part of the court than is given the human intellect, as it measurably involved the consideration of an almost impenetrable future, for in cases of this class a court is required to regard the best interests of the child in connection with the strict legal rights of a father. The law controlling the subject has been so clearly defined by our Court of Errors and Appeals that it cannot be mistaken; it is stated by that court as follows: * Defendant is a practicing physician of Camden. Her home, her surroundings, and "Doubtless it is the strict legal right of parher personality may be briefly characterized the custody of their infant children as against ents and those standing in loco parentis to have as in extreme contrast with those of peti- strangers. This right will control the judgment tioner. Her custody of Mary, the subject of of the court, unless circumstances of weight and this controversy, arose in the following man-importance connected with the welfare of the child exist to overbear such strict legal right. ner: About three years ago defendant was The court will not regard the parental right conducting a charitable institution known as as controlling, when to do so would imperil the the Mary J. Ball Home and Day Nursery, the personal safety, morals, health, or happiness of institution being named in honor of defend- often difficult judgment, the court looks at the the child. In determining this delicate and ant's deceased mother. The three children character, * * habits, and other surroundof petitioner were at that time placed in ings of claimants. In a controversy that institution, and petitioner paid $1 per mount consideration in controlling the discretion over its possession, its welfare will be the paraweek for board and care of each child. After of the court. The strict right of the parent will the three children had been in the home for be passed by, if a judgment in observance of about three months Mary was taken by de- such right would substitute a worse for a better fendant from the public home to her own 283, 17 Atl. 831, 14 Am. St. Rep. 726. Richards v. Collins, 45 N. J. Eq. residence, and since that time Mary has been in defendant's personal custody at defendant's residence. The transfer of Mary's custody from the public home to defendant's private residence was undoubtedly with petitioner's acquiescence; whether with his express consent is a matter of dispute. Since that time the Mary J. Ball Home and Day Nursery has been incorporated. During the 21⁄2 years that Mary has been under defendant's personal care as a member of her household defendant has acquired deep affection for the child and that affection is obviously reciprocal; defendant has, indeed, sought to legally adopt the child, but has not been permitted to do so. The child, in marked and almost startling contrast with her father, is bright and attractive to an extreme degree. No word or suggestion of criticism has been made touching defendant's treatment of the child or touching her fitness as custodian of the child; the grievance of petitioner appears to be based upon his claim that he has been denied the right to visit his child as freely as he has desired. This claim is denied by defendant. It is established by the evidence that petitioner, as now circumstanced, is unable to assume personal custody of the child. It is, however, his purpose and wish to have the child placed in the Mary J. Ball Home and custodian." It will thus be seen that a child cannot be A father lawfully regarded as a mere inanimate chat- In this view of the law as applied to the facts of this case it is obviously impossible for this court to aid petitioner at this time. The prayer of his petition must be denied. To avoid possible misunderstanding of the parties touching the effect of a denial of petitioner's prayer for custody, it may be well to call attention to the fact that the present adjudication relates alone to present conditions. Petitioner remains the father of the child with all the rights of a father; he is merely denied the right to at this time be awarded custody of the child. As father of the child it is his right to retain and foster the love and esteem of his child and to enjoy her society at all reasonable times. It is, in like manner, the duty of defendant to teach the child to love and respect her father and to allow the father the fullest possible privileges for the enjoyment of the society of his child; any failure of this duty upon the part of defendant may be made the basis of future relief on his part. The mother of the child may recover from her unfortunate malady and the conditions of the father and mother of the child may, at some future time, determine the best interests of the child to be with them. It seems immaterial whether this proceeding be regarded as a strict habeas corpus proceeding, or as a chancery proceeding appealing to the chancellor as the representative of the state and the ultimate guardian of all infants. The prayer of the petition is that the child may be released from the restraint of defendant, and also that the child be delivered to petitioner. I am satisfied, not only from the evidence adduced on the hearing, but from a study of the building on the Gerba lot stands wholly within maps that were put in evidence, that the the lines of the lot which was conveyed to her and her husband by Richnowsky and wife on August 10, 1895. Mitruske knew all about the property, because he occupied it as a tenant at the time he made the agreement to purchase it. What he undoubtedly bargained for was the lot as conveyed by Richnowsky, and while the lot described in the agreement is substantially smaller than that described in Mrs. Gerba's deed, yet Mrs. Gerba proposes to convey to him the same lot as was conveyed to her. One of the objections raised by the defendant title. I am obliged to advise an order denying nothing in the way of a specific performance of the prayer of the petition. (84 N. J. Eq. 79, 141) GERBA v. MITRUSKE. the agreement, and I will advise a decree to that effect. The details will have to be settled at the time of the settlement of the decree. Thomas Brown, of Perth Amboy, and Free (Court of Errors and Appeals of New Jersey. man Woodbridge, of New Brunswick, for ap March 1, 1915.) 1. SPECIFIC PERFORMANCE 92-TITLE OF VENDOR-TIME. A vendor is entitled to a decree of specific performance, where time of performance is not of the essence of the contract, if he can, at the time of the decree, give a clear title, though he could not at the time fixed by the contract for the transfer of the title or when the bill was filed. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 233-244; Dec. Dig. 92.] pellant. Adrian Lyon, of Perth Amboy, for appellee. GUMMERE, C. J. By the bill in this case the complainant, Mary Gerba, sought the specific performance of a contract made by her and the defendant for the sale of certain lands to him owned by her, and located in the city of Perth Amboy. The defense set up by the answer was that, at the time of the filing of the bill, the complainant was unable to make a good title, by reason of the fact that there was then in existence a prior Time is not of the essence of the contract, valid agreement made by her with one Kish as regards right of the vendor to specific per- for the sale of the same premises, which had formance when able to give clear title, though unable to give it at the time fixed by the con- been duly recorded; and, second, that the tract for transfer of the title, it not having been building upon the lot which was the subject expressly made so by the contract, and nothing of the agreement extended beyond the propin the circumstances indicating time of per 2. SPECIFIC PERFORMANCE 93-TIME AS ESSENCE OF CONTRACT. formance was considered a matter of impor-erty lines of the complainant, and upon lands tance, the purchaser's principal inducement for belonging to a stranger. The agreement making the contract being permanent possession sought to be enforced was made on the 27th of the premises, which he was already occupy ing as lessee, and he having remained undis- day of September, 1911, and provided for the turbed in the possession till he abandoned it aft- conveyance of the property by a deed of er the filing of the bill for specific performance. general warranty, free from all incumbranc [Ed. Note. For other cases, see Specific Per-es, on or before the 1st day of November then formance, Cent. Dig. §§ 245-248; Dec. Dig. 93.] Appeal from Court of Chancery. Suit by Mary Gerba against Mike Mitruske. Decree for complainant, and defendant appeals. Affirmed. next ensuing. The agreement between the complainant and Kish was entered into on the 11th day of September, 1911, was recorded on the 17th day of October of that year, and was to be performed on the 24th day of that month. The present bill was filed on the The following is the opinion of Vice Chan- 29th of December, 1911. The defendant's cellor Howell: answer was not filed until July 28, 1913. The 116th section of the act relating to convey-nent possession of premises which he was ances (Comp. Stat. 1573) provides that every already occupying as lessee, and he remained agreement for the sale of land thereafter undisturbed in that possession until the 1st recorded shall be absolutely void as against of April, 1912, three months after the filing subsequent judgment creditors of the vendor, of the bill. We conclude, therefore, that the and as against subsequent purchasers and existence of the Kish agreement at the time mortgagees for value of the lands, unless the of the filing of the bill afforded no ground vendee, within three months after the date for refusing the complainant the relief which fixed in such agreement for its consumma- she sought, in view of the fact that it had tion, shall commence suit for the specific become null and void as to the defendant performance of the said agreement, or for its prior to the time of the making of the decree. rescission. By force of this statutory provision the agreement between the complainant and Kish became void on the 24th day of January, 1912, so far as subsequent purchasers were concerned, unless Kish on or before that day commenced suit as required by the statute. This he did not then do, or at any time thereafter; and so, although his agreement was in force at the time of the filing of the bill, it had become null and void as to the defendant before the filing of the latter's answer. The hearing in the Court of Chancery resulted in a decree directing per formance of the contract; and from that decree he now appeals. [1, 2] The principal question presented by the appeal is whether a decree compelling the defendant specifically to perform his contract can be legally justified, in view of the fact that, at the time fixed by the contract for the transfer of the title, and even when the bill was filed, the land was incumbered by the prior agreement. The prevailing rule with relation to cases of this kind is that where the time of performance is not of the essence of the contract, the complainant is entitled to a decree, if a clear title can be given by him at the time of the making thereof. Oakey v. Cook, 41 N. J. Eq. 350-364, 7 Atl. 495; Moore v. Galupo, 65 N. J. Eq. 194, 55 Atl. 628; Agens v. Koch, 74 N. J. Eq. 528, 70 Atl. 348. The rights of the parties in the present case must therefore depend upon whether time was of the essence of this particular contract. We think it was not. As a general rule, in equity time is not deemed to be of the essence of the contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract; and so equity will enforce the specific performance of agreements after the time fixed for their performance has been suffered to pass by the party asking for the intervention of the court, unless the facts submitted show that the parties to the contract intended that time so fixed should be of its essence. Huffman v. Hummer, 17 N. J. Eq. 263; King v. Buckman, 21 N. J. Eq. 599. Our examination of the facts in the present case discloses nothing to indicate that the time of performance was considered a matter of importance by either of the parties, but rather the contrary, for when the contract was made the principal inducement for making it, so far as the defendant was concerned, was the perma As to the second defense set up in the answer, we are entirely content with the disposition of it made by the court below, and have nothing to add to what was said by the Vice Chancellor in the memorandum opinion filed by him. The decree under review will be affirmed. (87 N. J. L. 64) LIGHTCAP et al. v. LEHIGH VALLEY R. CO. (Supreme Court of New Jersey. May 6, 1915.) (Syllabus by the Court.) The plaintiff was injured by falling upon a public street caused by ice which had formed there by the freezing of water which had run upon the sidewalk from the melting of snow The plaintiff lying upon the defendant's land. offered testimony from which an inference might be drawn that some snow had been brought upon the premises which had not naturally fallen there. The court was asked to charge that, in order to permit the plaintiff to recover, it must be shown that the snow was brought upon the premises from the sidewalk or from off the premises, and that the mere paths on the land or roadway will not entitle shoveling of snow on the premises to make the plaintiff to recover, which request the trial court refused. Held, that this was error, and that it was not cured by the instruction, "It is permit and allow this snow to be shoveled and for you to decide whether the defendant did accumulated on this property," for it was not an adequate substitute for the defendant's specific request. [Ed. Note.-For other cases, see Municipal Dig. 822; Trial, Cent. Dig. §§ 705-713, 715, Corporations, Cent. Dig. §§ 1758-1762; Dec. 716, 718; Dec. Dig. 296.] Appeal from Circuit Court, Warren County. against the Lehigh Valley Railroad Company. awarded. Smith & Brady, of Phillipsburg, for appellant. Elinor R. Gebhardt, of Clinton, for appellees. BERGEN, J. The defendant is the owner of a tract of land adjacent to a public street in the town of Phillipsburg. This street was laid out by the municipal authorities, and its improvement required an excavation along | cause the street was entirely changed. But the land of the defendant, which sloped to- manifestly this is no ground for nonsuit, bewards the street, and the defendant built a cause the basis of the action is not that the retaining wall along the side of the street, grade of the street had been changed, but which required some filling in order to bring that the defendant had negligently caused the slope to the top of the wall, thereby re- the street to become dangerous. ducing the natural slope, although not enough to prevent the surface water falling on defendant's land from running over the wall and falling on the street. There was some evidence that, prior to these improvements, the surface water escaped partly by running over the land taken for the proposed street, and partly in another direction towards a canal basin, and that the defendant so changed the topography of its land as to cast all the surface water on the street. At the time of the accident which produced plaintiff's injuries, she was walking with her husband along the sidewalk, a part of which was covered with ice resulting from the melting of the snow lying upon defendant's land which had run over the wall and fallen upon the sidewalk. As the plaintiff was walking along the sidewalk, she fell upon the ice and received injuries, for which she brought her suit, in which her husband joined, and each recovered a verdict, upon which judgment has been entered, and from which the defendant appeals. The first point argued is that the trial court erroneously refused defendant's motion for a nonsuit, which was based upon several grounds, the first of which was that the plaintiff was guilty of contributory negligence in that she did not exercise reasonable care in going upon the ice which she saw. But reasonable care only requires the precaution to be in proportion with the danger of injury, and this may vary with the circumstances of every case. Durant v. Palmer, 29 N. J. Law, 544. In the present case, plaintiff saw the ice on the sidewalk, but assumed that she could safely pass with the assistance of her husband, whose arm she was holding. We think that the question whether she exercised reasonable care under these circumstances was one for the jury, otherwise the court would have to decide, in each instance, whether the condition of the sidewalk as to ice and snow was such that a person, in the exercise of reasonable care, would not undertake to walk along it, and we think there was no error in the refusal to nonsuit upon this ground. The next point in support of the motion is that there was no evidence to show a great er flow of water over the street after the improvement than there was before. But the evidence on this point was contradictory, and therefore the precise point raised on this part of the case, under this theory, was a question of fact. The fourth and last point was that there was no evidence that the defendant piled any snow upon its property to cause a greater flow of water from the melting of the snow. There was some evidence, perhaps of doubtful meaning, from which it might be inferred that the snow had been shoveled from the sidewalk on the property of the defendant; and, while we might not draw such an inference if we were settling the question of fact, still there was enough to raise a jury question, and therefore the trial court would not have been justified in granting a nonsuit either upon the ground of the want of proof of negligence on the part of the defendant or because of the contributory negligence of the plaintiff. The defendant also argues in its brief that the court improperly charged the jury that if the defendant created on its ground, by the change of grade of the street and the other changes which were made there, such an unnatural and artificial condition as caused the water to accumulate and run over the sidewalk and produce the ice, the defendant is liable. But no exception was taken to this part of the charge, and we are not called upon to determine its correctness, and it is only here referred to because we do not wish it to be assumed that the correctness of this legal proposition is approved simply because it was not referred to. If the natural fall of snow be treated the same as surface water, then it may well be doubted whether changing the topography of the land in such manner as to divert in a particular direction water resulting from melting snow is an actionable injury. Bowlsby v. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216. The only other error assigned which it is necessary for us to consider is the refusal of the trial court to charge this request: "In order to recover by reason of snow piled on the premises melting and running to the sidewalk and freezing, it must be shown that the snow was brought upon the premises from the sidewalk or from off the premises: The mere shoveling of snow on the premises to make paths on the land or roadway will not entitle the plaintiff to recover." This, we think, the defendant was entitled to have charged, otherwise the court would be required to hold that every person owning land adjacent to a street, who removed snow from a path leading to a dwelling house, would be responsible for injuries caused by falling upon ice which came from the melt. ing of snow and the running of the water The third matter urged by the defendant therefrom upon a sidewalk, and it is quite was that the laying out of the sidewalk and well settled that the landowner owes no its grades were fixed by the municipality of duty to a pedestrian to keep the sidewalk Phillipsburg, and that the defendants were clear of ice and snow coming thereon from not chargeable for anything that occurred be- | natural causes, or to guard against the risk of accident by scattering ashes or using any other like precaution. Kirby v. Boylston Market Ass'n, 14 Gray (Mass.) 249, 74 Am. Dec. 682. All the cases on this subject, where the defendant has been held liable, are those where the injury was caused by the creation of a nuisance upon the highway by the defendant, as by the artificial accumulation of ice and snow upon the sidewalk in front of his premises, or upon his premises adjacent thereto, as indicated by this court in Aull v. Lee, 84 N. J. Law, 155, 85 Atl. 1018. Nor does it appear that the request was charged. What the court said on this point is: "It is for you to decide whether the defendant did permit and allow this snow to be shoveled and accumulated on this property. If it did not, and the plaintiffs have not satisfied you by a fair preponderance of the evidence, then the plaintiffs cannot recover on that branch of the case. If the plaintiffs have satisfied you in that way by a preponderance of the testimony over that of the defendant, then they have established to your satisfaction that the snow was piled in the way I have indicated." There does not appear to be in the charge any indication of the way in which the snow must be piled to render the defendant liable, except such as may be found in the excerpts from the opinion in Aull v. Lee, supra, and that does not clearly state what was requested, and the defendant was entitled to have charged the law as applicable to the facts in this case. The opinion which the trial court read to the jury was read in a case where it was conceded that the defendant had brought snow from beyond his own land and artificially accumulated it upon it for her own purposes, while in the case under consideration there was evidence from which a jury might well infer that all the snow which was piled on the defendant's premises was that which had naturally fallen there, and what the court said was not "an adequate substitute for the defendant's specific request." Mellon v. Victor Talking Machine Co., 77 N. J. Law, 670, 73 Atl. 494. We think the refusal to charge, as requested in this case, was an error injurious to the defendant, and for that reason the judgment should be reversed, and a venire de novo awarded. (84 N. J. Eq. 77, 189) · COHEN V. POOL. (No. 24.) (Court of Errors and Appeals of New Jersey. Jan. 27, 1915.) 1. SPECIFIC PERFORMANCE 32-DEFENSESLACK OF MUTUALITY. term of five years, together with an extension term of the same period. The document also provided that the party of the second part, upon whom were imposed duties of repair, would have the right to buy the property at a fixed sum. The agreement named no person or persons as lessees or parties of the second part, and did not fix the date when rent should begin to accrue. Held, that it was too indefinite to be specifically enforced, either as to the lease or agreement to sell; the agreement to sell not providing within what time the option should be exercised. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 61-68; Dec. Dig. 28.] Appeal from Court of Chancery. Bill by Aaron M. Cohen against Augustus G. Pool. From a decree for defendant, plaintiff appeals. Affirmed. The opinion of Vice Chancellor Howell is as follows: The bill of complaint in this case is filed for the purpose of compelling the specific performance of a document alleged to be a contract, and for the sale of real estate, of which the following is a copy: "A. G. Pool, "Manufacturer of Carriages, Wagons "506-508 Elizabeth Avenue. "Elizabeth, N. J., March 3, 1913. "I will give property No. 506-508 Elizabeth Ave for rent at Sixty Dollars $60.00/100 a month for five years lease and five years more, and all repairing must be done by said 2nd par ty of said first party inside and look over said time afer to Thursday March 6. inst. at noon about 1 to 3 P. M. and I will sine all papers wich must be made by attorney and said party of 2, will the right to buy said said property for Twenty thousand dollars $20000 any time said party No 2 will take property. All repairing outside must be done first party. "[Signed] A. G. Pool." The defendant objects upon the following merely an agreement for a lease; (2) that it grounds: (1) That the so-called contract is is void for uncertainty; (3) lack of parties, it being alleged that the complainant was not the only party to the agreement; (4) that the contract is not mutual. [1] The lack of mutuality is cured by the beginning of the suit. It was held in Krah v. Wassmer, 75 N. J. Eq. 109, 71 Atl. 404, that a unilateral contract to convey lands ceases to be unilateral on the purchaser filing a bill for specific performance thereof. The decision of this point, therefore, must be in favor of the complainant. [2] The other three points must be considered together. It is a well-settled principle of law that this court will not make a decree for the specific performance of a contract in a case in uncertain (Wharton v. Stoutenburg, 35 N. J. which the contract sought to be performed is Eq. 266; Clow v. Taylor, 27 N. J. Eq. 418; Brown v. Brown, 33 N. J. Eq. 650); the reason being that otherwise the court could not be assured that it is enforcing the agreement which the parties had made. The terms of the agreement, therefore, must be such as to demonstrate to the court the capability of accurate Per-jection that strikes the eye is that no lessee is The first oband exact specific performance. Inamed in the agreement itself. The agreement was executed at the house of the defend28-CONTRACTS ant, and after its execution it was handed to the complainant, but that is the only thing in An instrument recited that defendant, an the case which indicates that the complainant owner of land, would lease the property for a alone or in connection with other persons was A unilateral contract to convey land ceases to be unilateral on the purchaser filing a bill for specific performance, so the defense of want of mutuality is unavailing. [Ed. Note. For other cases, see Specific formance, Cent. Dig. §§ 89-99; Dec. Dig. 32.] 2. SPECIFIC PERFORMANCE -DEFINITENESS. |