Kean v. Asch. tion, decreed that upon the complainants paying to him the amounts paid by him for the tax titles, with lawful interest from the time of purchase, the injunction would be made perpetual. Bill for relief. On final hearing on pleadings and state of the case. Mr. J. R. English, for complainants. Mr. R. E. Chetwood, for defendant. THE CHANCELLOR. The bill is filed for an injunction to restrain the defendant from erecting a building on a lane or alley in Elizabeth, over which the complainants, who respectively own lots of improved land upon it, have a right of way in respect of their land. The defendant claims title to the premises in question under sales by the municipal authorities of Elizabeth, under their charter, for assessments upon the property for municipal improvements. Those improvements were the construction of a sewer and the paving of a street. The assessment for the construction of the sewer was ratified by the city council on the 6th of June, 1868, and the sale under it took place on the 6th of February, 1872. The amount for which the property was then sold was $58.50, the amount of the assessment, with interest and costs. The city became the purchaser for a term of fifty years. The premises were not redeemed, and the city sold their term in them to the defendant for the $58.50. The assessment for paving was ratified on the 30th of May, 1868, and under it the property was, on the 8th of September, 1874, sold to the defendant for a term of fifty years, for $155.76, the amount of the assessment, with interest and costs. When the bill was filed the defendant had begun the erection of a frame building on and across the alley. The charter of the city, as it stood when the assessments in question were made, directed that the cost, damages, and expenses of the construction of a sewer should be justly and equitably assessed Kean v. Asch. upon the owners of all the lands and real estate benefited thereby, in proportion, as nearly as might be, to the advantage each should be deemed to acquire, and that the costs and expense of paving should be assessed on the owners of lands. and real estate on the line of the street or section of street paved. In case of the construction of a sewer, the assessment was to be made by commissioners, and in the case of paving, by the city surveyor. Notice of the assessment, of the time. when it was made, and of the time and place when and where the parties interested could be heard in reference to it, was to be given by publication in a newspaper in Elizabeth, for one week. Charter of Elizabeth, §§ 101, 104, 105, 106, Pamph. L., 1863, pp. 148, 149, 150. Neither of the assessments in question was made upon any one as the owner of the property. The notice of the assessment for the sewer stated no owner for the alley. It designated the property by the number on the assessment map, and as "lane." There was a like designation of another piece of property in the same notice, and there was another alley or lane also running as the alley in question does, from Mechanic street, which was also assessed for the same improvement. The notice of the assessment for paving contained no particulars of the assessment, and was substantially the same as that which was condemned in State, Kellogg, pros., v. City of Elizabeth, 8 Vroom, 353. The case presented is appropriate for relief by this court.. Were the defendant to be permitted to erect his building across, and so to shut up the alley, it would inflict irreparable damage on the complainants. The alley is twelve feet wide. It has been an open private way for about forty years. It is in the thickly settled and built up part of the city. The front of the lots of the complainants which are bounded in the rear by the alley, are entirely occupied with buildings, so that the complainants have no access for horses or carriages to the rear of their lots, except by the alley. On the lot of one of the complainants there is, and for many years past has been, a barn adjoining the alley, and to which he and those holding the barn under him have had access by the alley, and House worth's Administrator v. Hendrickson. except by the alley, he has no access to his barn without going over the land of others, or going through his dwellinghouse. Another of the complainants has a large garden and grounds adjoining the alley, to which he has no access for horses and wagons except over the land of other persons, if deprived of the use of the alley. The title of the complainants to the easement of the alley is not denied. The tax titles cannot be sustained. It is enough on this head to say that neither the assessment nor the notice, in either case, is in conformity with the provisions of the charter. There was no assessment against, nor any notice to any person as the owner of the property, or of any interest therein. State, Peters, pros., v. Mayor, &c., of Newark, 2 Vroom 360; State, Kellogg, pros., v. City of Elizabeth, ubi supra. The defendant, however, is a bona fide purchaser of the tax titles for valuable consideration-the amount due on the assessments. He should be dealt with equitably. On the complainants paying to him the amounts paid by him for the tax titles, with lawful interest thereon from the time of his purchase thereof, the injunction will be made perpetual. No costs will be awarded. HOUSEWORTH'S ADMINISTRATOR vs. HENDRICKSON. 1. A ne exeat obtained upon affidavits substantiating declarations and acts of the defendant as evidence of his intention to depart the state, will not be discharged upon a counter affidavit by the defendant denying the inten tion. 2. When, to a bill filed by an administrator against his intestate's co-partner for an account, and for a writ of ne exeat, the answer, denying the right to an account, substantially admits the correctness of the allegations of the bill as to defendant's statement of the assets of the firm, and the amount of its indebtedness, but denies that the estimates were correct, and that defendant owes anything to the estate of the intestate-such denial cannot avail to discharge the writ. Houseworth's Administrator v. Hendrickson. 3. Writ to be discharged, and the bond given under it canceled, on the defendant's giving bond, with security, in the sum for which bail was ordered. On motion to discharge ne exeat, on bill and answer and affidavits to each annexed. Mr. William Luse, for motion. Mr. J. G. Shipman, contra. THE CHANCELLOR. The bill is filed by an administrator against the co-partner of the intestate. It prays an account and a decree thereupon in favor of the complainant. It prays also for a writ of ne exeat, on the ground that the defendant intends quickly to leave this state, and go to Middletown, in the State of New York, to join his son, whom, as the bill alleges, he has set up in business there. The bill states that the death of the intestate took place on the 20th of February, 1873, and that seven days afterwards, his widow and Mr. James Purnell Toadvin were appointed administrators; that they made an inventory and caused an appraisement to be made of the goods, chattels,. and credits of the intestate, on the 4th of March following, and that on that occasion the defendant made a statement that the available assets of the late firm of P. M. Hendrickson & Co.,. (which was composed of himself and the intestate), in his hands, as surviving partner, amounted to $3150.64, and that the debts of the firm amounted to $1004.88, leaving a balance of $2145.76. It further states that the administrators, with the consent and approval of the defendant, caused the amount due to the estate from the defendant, for its share of that balance, to be appraised at $1000, and charged themselves in the inventory filed by them in the surrogate's office of Warren county, with that amount accordingly. The above-mentioned administrators were removed on the 6th of March, 1875, and the complainant was appointed in. Houseworth's Administrator v. Hendrickson. their stead. The allegations of the bill, as to the statement made by the defendant and the action of the administrators thereupon, are sustained by the affidavit of Mr. Toadvin, attached to the bill. The allegation that the defendant intends quickly to depart out of the state, is supported by the affidavit of John V. Deshong, who swears that, on the 26th of August, 1875, four days before the filing of the bill, the defendant told him that he was going to Middletown, in New York, on that day; and that some time before that time, the defendant informed him that he intended to move his family to that place, in the fall of 1875, and that his son Charles was in business there. Deshong further swears that the defendant told him that he was going to Middletown because there was no business in Belvidere, and that on one occasion the defendant spoke of the business in Middletown as his own. The statements of this affidavit, as to the intention of the defendant to leave the state, are not denied. It is true, the defendant states, in his answer, that he never intended to remove to Middletown. If, for the purposes of such a motion as this, the general affidavit that the facts, matters, and things contained in the answer, so far as they relate to the acts and deeds of the defendant, are true, were accepted (as it manifestly cannot be) as a verification of the statement as to the defendant's intentions, contained in the answer, that statement could not countervail the facts sworn to by Deshong. The court will not discharge a ne exeat obtained upon affidavits substantiating declarations and acts of the defendant, as evidence of his intention to go abroad, upon a counter affidavit by the defendant, denying the intention. Whitehouse v. Partridge, 3 Swanst. 365, 375; Amsinck v. Barklay, 8 Ves. 594, 597. The complainant has sought relief in the proper forum, and the debt was sufficiently established by the bill and affidavits annexed, to authorize the award of the writ. The defendant alleges, in his answer, that the widow and daughter, the only next of kin of the intestate, a few days after the death of the latter, took the place of the intestate in the business, under an agreement |