Transcript of Record — McQuade v. Trenton

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(16,612.)

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1897.

No. 399.

JOHN McQUADE, PLAINTIFF IN ERROR,

Us,

THE INHABITANTS OF THE CITY OF TRENTON.

IN ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE

OF NEW JERSEY.

INDEX.

Original Print,

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William Hartman ER oe Ar Repeater ne ny 12 12

Ordinance approved February 21, 1891 ................... ee 14 13

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Jupp & Seentiinieni. Peiesine W SHING TON ; vi

| JOHN MCQUADE Vs. INHABITANTS OF CITY OF TRENTON. 1

a Supreme Court of the United States.

In the Matter of the Petition of Joun McQuaps for a Writ of Error

to the New Jersey Court of Errors and Appeals.

The petition of John McQuade respectfully shows that on or

about the 21st day of November, 1895, in a cause wherein The In-

habitants of the City of Trenton were complainants and respond-

ents, and the said Johu McQuade was defendant and appellant, the

New Jersey court of errors and appeals, being the highest court of

law and equity of the State of New Jersey in which a decision

could be had in said cause, made and filed a decree and remittitur

in favor of the said The Inhabitants of the City of Trenton and

against the petitioner, in which, as well as in the proceedings bad

prior thereto, and the record in said cause, certain errors have hap-

pened to the prejudice of your petitioner, all of which will more

fully and at large appear from the assignment of errors filed here-

with.

Wherefore, petitioner prays that a writ of error be issued

b from this honorable court in petitioner’s behalf to the said

New Jersey court of errors and appeals for the correction of

the errors so complained of, and that a transcript of the record pro-

ceedings and papers in the said cause, duly authenticated, may be

sent to this court.

And your petitioner will ever pray, ete.

DAVID McCLURE,

Attorney for Petitioner, 22 William Street, New York.

c — Supreme Court of the United States.

In the Matter of the Petition of Joan McQuape for a Writ of Error

to the New Jersey Court of Errors and Appeals.

Assignment of Errors.

Now comes the said John McQuade by David McClure, his

attorney, and in connection with his petition filed herein praying

for a writ of error to the New Jersey court of errors and appeals, to

correct the errors made by said court in a certain cause wherein

The Inhabitants of the City of Trenton were complainants and

respondents, and the said John McQuade was defendant and appel-

lant, avers that in the record of proceedings in said cause and in the

decree and remittitur made and filed in said cause by the said

New Jersey court of errors and appeals on or about the 21st day

of November, 1895, there is manifest error, to wit:

I.

That the said New Jersey court of errors and appeals erred by

affirming in said decree and remittitur the decree of the court of

chancery made in said cause on or about the 9th day of April, 1895,

1—399

Seow.

JOHN MCQUADE VS.

whereby it was adjudged that the said John McQuade be

d perpetually enjoined and restrained not only from further

interfering with the laying and completion of the sidewalk

and curbing mentioned in the biil of complaint in said cause, but

also from in any manner removing, disturbing or interfering with

the said pavement, sidewalk or curbing after the same should have

been completed, and that a writ of injunction issue accordingly.

Il.

That the said decree and remittitur is erroneous because by it the

complainants and respondents in said cause are permitted to take the

private property of the said John McQuade for public use without

just compensation as required to be made under the provisions of the

Constitution of the United States and the amendments thereto.

III.

That the said decree and remittitur is erroneous because by it the

Pennsylvania Railroad Company is permitted to take and injure the

private property of the said John McQuade without just compensa-

tion as required to be made under the provisions of the Constitution

of the United States and the amendments thereto.

IV.

That the said decree and remittitur is erroneous because through

it the property of the said John McQuade is damaged without just

compensation made for such damage to the said John McQuade.

€ V.

That said decree and remittitur is erroneous because, by it, the

right to take or injure the said John McQuade’s property in the

manner set forth in the pleadings and proofs in the said cause had

not been acquired either by the said complainants and respondents

or by the Pennsylvania Railroad Company by the exercise of the

power of eminent domain or otherwise.

VI.

That the said court of errors and appeals erred in making the

said decision and decree and remittitur because no procedure for

taking or injuring private property in the manner shown in the

pleadings and proofs in said cause has been at any time prescribed

or enacted by the legislature of the State of New Jersey.

VII.

That the said court of errors and appeals erred in making the

said decision and decree and remittitur because the record in said

eause shows that the said John MeQuade’s property has been taken

for public use without just compensation first made to him.

THE INHABITANTs OF THE CITY OF TRENTON,

VIIL.

That the said decree and remittitur is erroneous because by it

the said John McQuade is deprived of his property without due

process of law, in violation of the fourteenth amendment of the

Constitution of the United States.

f IX.

That the said decree and remittitur of the said court of errors

and appeals is erroneous because it is in sundry other respects con-

trary to the Constitution of the United States and the law of the

land.

Wherefore, the said John McQuade prays that the decision and

decree and remittitur of the said New Jersey court of errors and

appeals be vacated, and that such other relief be granted to the

said John McQuade as may be necessary and proper.

DAVID McCLURE,

Attorney for John McQuade, 22 William Street, New York.

g Unirep States OF AMERICA, 88:

The President of the United States of America to the honorable the

judges of the court of errors and appeals of the State of New

Jersey, Greeting:

{Seal of the Supreme Court of the United States. ]

Because in the record and proceedings, as also in the rendition of

the judgment of a plea which is in the said courtof errorsand appeals,

before you or some of you, being the highest court of law or equity

of the said State in which a decision could be had in the said suit,

between John McQuade, appellant, and The Inhabitants of the City

of Trenton, respondents, wherein was drawn in question the valid-

ity of a treaty or statute of or an authority exercised under the

United States and the decision was against their validity, or wherein

was drawn in question the validity of a siatute of or an authority

exercised under said State, on the ground of their being repugnant

to the Constitution, treaties, or laws of the United States, and the

decision was in favor of such their validity, or wherein was drawn

in question the construction of a clause of the Constitution

h or of a treaty or statute of or commission held under the

United States and the decision was against the title, right,

privilege, or exemption specially set up or claimed under such

clause of the said Constitution, treaty, statute, or commission, a

manifest error hath happened, to the great damage of the said ap-

pellant, as by hiscomplaint appears, we, being willing that error,

if any hath been, should be duly corrected and full and speedy

justice done to the parties aforesaid in this behalf, do command

you, if judgment be therein given, that then, under your seal,

distinctly and openly, you send the record and proceedings

aforesaid, with all things concerning the same, to the Supreme

Court of the United States, together with this writ, so that you have

4 JOHN MCQUADE VS.

the same in the said Supreme Court, at Washington, within 30

days from the date hereof, that, the record and proceedings aforesaid

being inspected, the said Supreme Court may cause further to be

done therein to correct that error what of right and according to

the laws and customs of the United States should be done.

Wituess the Honorable Melville W. Fuller, Chief Justice of the

United States, the 22d day of May, in the year of our Lord one

thousand eight hundred and ninety-seven. .

JAMES H. McKENNEY,

Clerk of the Supreme Court of the United States,

Allowed by—

GEORGE SHIRAS, Jr,

Associate Justice of the Supreme Court of the United States.

a The answer of the judges of the court of errors and appeais

in the last resort in all causes in the State of New Jersey,

within named.

The record and proceedings whereof mention is within made,

with all things touching and concerning tlie same, we do certify to

the Supreme Court of the United States in a certain schedule to this

writ annexed as within commanded.

ALEX. T. McGILL,

Chancellor, Presiding Judge of the Court of Errors and

Appeals in the Last Resort in all Causes in New Jersey.

1 New Jersey Court of Errors and Appeals.

JoHn McQuape, Appellant, }

and t

1 ry u yea .

THe INHABITANTS OF THE City or TRENTON, Re- (° Appeal

spondents. J

Bill for Injunction.

(Filed March 15, 1894.)

In Chancery of New Jersey.

THe INHABITANTS OF THE CITY oF TRENTON, ]

Complainants, ( On Bill for In-

and { junction.

JoHn McQuapbe, Defendant.

To his honor Alexander T. McGill, chancellor of the State of New

Jersey :

Humbly complaining shows unto your honor, your orators, The

Inhabitants of the City of Trenton, a municipal corporation exist-

ing under and by virtue of an act of the legislature of New

2 Jersey entitled “An act to provide for the more efficient

government of the city of Trenton,” approved March 19th,

1874, and the several supplements thereto and the acts amendatory

thereof.

THE INHABITANTS OF THE CITY OF TRENTON. 5

And your orators further show, that in pursuance of the power

and authority vested in it under and by virtue of the act of the

legislature aforesaid, the common council of the city of Trenton did,

on or the about seventeenth day of February, eighteen hundred and

ninety-one, finally pass an ordinance entitled “An ordinance to

change the grade of a portion of Lamberton and Ferry streets, and

to widen Bridge street, between Union and Warren streets, also to

vacate a portion of Bridge street,” in the city of Trenton, and which

said ordinance was duly approved by his honor, the mayor of said

city, on February twenty-first, eighteen hundred and ninety-one.

That said ordinance was introduced in said common council at a

regular meeting prior to the meeting at which it was finally passed,

and was read three times before its final passage, and was passed at

a subsequent regular meeting to that at which it was introduced,

and after its passage as aforesaid, was published for five days in two

or more of the daily newspapers printed and published in the city

of Trenton before the same took effect.

And your orators further show, that the change of grade on said

portions of said streets aforesaid was made and said ordinance

passed at the special instance and request, and by the procurement

of the Pennsylvania Railroad Company, upon the express proviso

that the said railroad company should, at its own expense, lay out,

grade, curb, pave and dedicate a new street, thirty fect wide, between

Warren and Fair streets, and should widen Bridge street, between

Union and Warren streets, and should dedicate the part so widened

to the city of Trenton, and should provide means to carry off all the

surface water whose then present course would be diverted or

changed by the aforesaid alterations and changes in said streets, and

that said railroad company should file with the city solicitur a satis-

factory agreement with the Inhabitants of the City of Trenton that

they would furnish and pay for the labor and materials neces-

3 sary to make said alterations, and indemnify the said The

Inhabitants of the City of Trenton against any expense or

losses which might be incurred as damages to property affected, or

otherwise, by the said changes of grade, and said vacation of por-

tions of said street, and should, within thirty days after the passage

of said ordinance, file a satisfactory bond with the city solicitor for

the faithful performance of said agreement before mentioned, and

that said ordinance should not go into effect until the said bond

was filed and the expense of the passage of said ordinance paid ; all

which will more fully and at large appear by the said ordinance or

from the certified copy thereof hereunto annexed and hereby made

a part hereof.

And your orators further show, that the said Pennsylvania Rail-

road Company, at the time of the changes of grade and alteration

of said streets as aforesaid, did pay the expense thereof, and did

dedicate a new street between Warren and Fair streets, and did

widen Bridge street, between Union and Warren streets, and did

dedicate the part so widened to the city of Trenton, aud did pro-

vide means to earry off all surface water whose then present course

was diverted or changed by the aforesaid alterations and changes in

6 JOHN MCQUADE Vs.

said streets, and did file with the city solicitor a satisfactory agree-

ment with the Inhabitants of the City of Trenton that they would

furnish and pay for the labor and materials necessary to make said

alterations, and indemnify the said city against any losses or expense

which might be incurred as damages to property affected, or other-

wise, by the said changes of grades and alterations in said streets,

and did, within thirty days after the passage of said ordinance, file

a satisfactory bond with the city solicitor for the faithful perform-

ance of said agreement aforesaid, and before said ordinance went

into effect, did pay the expense of the passage thereof, including

the printing and publication thereof, and did perform all and singu-

lar the things precedent on said company’s part to be done before

said ordinance went into full force and effect, before the happen-

ings, actings and doings of the said defendant as hereinafter set

forth.

4 And your erators further show, that one John McQuade

owns and occupies a house and lot of land on the northerly

side of Ferry street, in said city of Trenton, which said premises of

said John McQuade are on that portion of said Ferry street the

grade of which was changed by virtue of the ordinance aforesaid.

And your orators further show, that on or about the seventeenth

day of June, in the year eighteen hundred and ninety-two, and

after the grade of said Ferry street had been changed, pursuant to

the aforesaid ordinance, and after means had been provided for car-

rving off all surface water whose then present course was diverted

or changed by the aforesaid alterations in said streets, Joseph R.

Gilkyson, agent of the Pennsylvania Railroad Company, in said

city of Trenton, was given authority and permission by John M.

Rulon, street commissioner of said city of Trenton, to relay and

reset the curb, gutter and pavement in front of the aforesaid prop-

erty of said John McQuade, on said northerly side of Ferry street,

and that on or about the said last-mentioned day, the said Joseph

R. Gilkyson, by his workmen, servants and employees, did reset and

relay the curb and pavement and gutter in front of the property of

the said John MeQuade aforesaid; and that while the said Joseph

R. Gilkyson, his servants, workmen and agents were so employed

in changing the grade of the said sidewalk, relaying the said pave-

ment thereon and resetting the said curb-line and gutter thereof,

the said John McQuade interfered with the said workmen, by not

only notifying the said workmen engaged in the said work afore-

said, and warning them to absolutely desist and refrain from chang-

ing the grade of said sidewalk, relaying said pavement and resetting

the said curb and gutter, but also endeavored forcibly to interfere

with and obstruct with said work, and while the said work was

progressing the said John McQuade, from the second-story windows

of the house on the lot of land in front of which said grade was

being changed, and said pavement, curb and gutter being relaid

and reset, threw hot and cold water on the men so engaged

5 in the work aforesaid, himself, and had several other persons

throwing water on the men out of the second-story windows

aforesaid; that the said work occupied the space of about two hours,

THE INHABITANTS OF THE CITY OF TRENTON.

and that during all that time the said McQuade interfered with and

tried to prevent the said work in the manner aforesaid; and that in

order to prosecute the said work, and in a measure to prevent said

men so at work being deluged with water from said MeQuade and

his abettors, the workmen so engaged spread a large canvass over

their heads in front of the property of the said McQuade and main-

tained the same during all the time that said work progressed.

And your orators further show, that the said work of relaying the

pavement and resetting the curb-line and gutter thereof, in front of

said property of the said Jolin McQuade, was done under and by

virtue of the authority of the street commissioner of the city of Tren-

ton, acting under and by virtue of the ordinance hereinbefore par-

ticularly mentioned, and a copy of which said ordinance is hereunto

annexed and hereby made a part hereof.

And your orator- further shows, that after the relaying of the pave-

ment in front of said property of said McQuade, and the resetting

of the curb and gutter in front thereof, and on or about the — day

of June, eighteen hundred and ninety-two, the said John McQuade

did willfully and deliberately tear up the pavement so as aforesaid

laid in front of his said premises, and disturbed, barred out and

upset the curb and gutter so as aforesaid laid in front of his said

premises on Ferry street, and that the said pavement in front of the

said McQuade’s premises has remained, and still remains, torn up

and disturbed, and the street in front of said premises is uneven,

holds water in times of rainfall, and is rendered well-nigh impassible

for pedestrains by reason of its condition aforesaid, the said McQuade

having dug a hole three or four feet square in the sidewalk in front

of his said premises which he keeps filled with water when the same

is not filled by the fall of rain; that the said John McQuade has in-

formed the street commissioner of the city of Trenton and many

other people that he disturbed and tore up said pavement

6 aforesaid and broke down the curb-line thereof, and that he

will not permit the said pavement to be relaid, and that if it

should be relaid he will tear it up again and as often as it is relaid

and as fast as it is relaid.

All which actings and doings of said John McQuade are contrary

to equity and good conscience, and tend to the manifest wrong, in-

jury and oppression of your orators.

In tender consideration whereof, and forasmuch as your orators

are without remedy at and by the strict rules of the common law,

and can only.obtain relief in this honorable court, where matters of

this nature are particularly cognizable and relievable :

To the end therefore that the said John McQuade may answer

this bill, but without oath, and particularly that he may set forth

and discover whether or not he did willfully and deliberately tear

up the pavement so as aforesaid laid in front of his said premises,

and disturb, bar out and upset the curb and the gutter so laid in

front of his said premises on Ferry street; and that by the order

and decree of this honorable court the said John MeQuade may be

perpetually enjoined and restrained from in any manner interfering

with, hindering or obstructing the laying of said pavement and the

§ JOHN MCQUADE Vs.

resetting of said curb and gutter in front of said premises by your

orators and those acting for them in the premises; and from tearing

up, barring out or otherwise disturbing the pavement, curb and

gutter when relaid and reset in front of his said premises by virtue

of said ordinance ; and that your orators nay have such other and

further relief as the nature and circumstances of the case may re-

quire, and as shall be agreeable-to equity and good conscience.

May it please your honor, the premises considered, to grant unto

your orators not only the State’s writ of injunction issuing out of and

under the seal of this honorable court, to be directed to the said

John MeQuade, his servants, agents and workmen, enjoining and

restraining them and each of them from in any way interfering with,

disturbing or obstructing the relaying of the pavement aud

7 resetting of the curb and gutter in front of said premises,

on the northerly side of Ferry street, in the city of Trenton

aforesaid, pursuant to the provisions of the ordinance hereinbefore

particularly mentioned and referred to; and from tearing up, bar-

ring out or otherwise disturbing the pavement, curb and gutter

when relaid and reset in frout of his said premises, by virtue of said

ordinance; but also the State’s writ of subpeena liKewise issuing out

of and under the seal of this honorable court to be directed to the

said John MeQuade, commanding him on a certain day and under

a certain penalty therein to be expressed, to be and appear before

your honor in this honorable court, then and there to answer the

premises and stand to, abide by and perform such order and decree

therein as to your honor shall seem meet and as shall be agreeable

to equity and good conscience.

And your orators, as in duty bound, will ever pray, &e.

EDWIN ROB’T WALKER,

Sol’r and of Council with Complainants.

Strate or New JeErsry, |

County of Mercer, =

John M. Rulon, of full age, being duly sworn according to law,

on his oath says, that he is and has been continuously since the

twentieth day of April, eighteem hundred and ninety-two, the street

commissioner of the city of Trenton ; that he knows John MeQuade,

the defendant in the above bill named; that he knows the premises

of John McQuade, on the northerly side of Ferry street, in the city

of Trenton, and that the said premises are situate on that sone

of said Ferry street, the grade of which was changed by an ordinance

entitled “An ordinance to change the grade of a portion of Lamber-

tou and Ferry streets, and to widen Bridge street, between Union

and Warreu streets, also to vacate a portion of Bridge street,”

passed February seventee-th, eighteen hundred and ninety-one ;

that the grade of Ferry street aforesaid had been changed pursuant

to said ordinance, before deponent became street commissioner of

said city of Trenton ; that as street commissioner as aforesaid,

8 he did, on or about the — day of June, eighteen hundred

and ninety-two, give to Joseph R. Gilkyson, agent of the

THE INHABITANTS OF THE CITY OF TRENTON. U

Pennsylvania Railroad Company, in the city of Trenton, authority

and permission to relay aud reset the curb and gutter and pave-

ment in front of the aforesaid property of said John McQuade, on

said Ferry street, at the grade established by said ordinance; that

after the giving of the said authority and permission as aforesaid,

and under and pursuant to the authority so by deponent given to

the suid Gilkyson, he, the said Gilkyson, agent as aforesaid, on or

about the — day of Jutie, eighteen hundred and ninety-two, by his

workmen, servants, and employees, did reset and relay the curb,

gutter and pavement in front of the property of the said John Me-

Quade aforesaid, and that thereafter, and on or about the — day of

June, in the year last aforesaid, the said John McQuade did, will-

fully and deliberately, tear up the pavement so as aforesaid laid in

front of his premises, and disturbed, barred out and upset the curb

and gutter so laid in front of his said premises on Ferry street, and

that the said pavement in front of said McQuade’s premises has

since remained, and still remains, torn up and disturbed, and the

surface of the street in front of his premises, by reason thereof, is

uneven, holds water in times of rainfall, and is rendered well-nigh

impassable for pedestrians, by reasou of its condition aforesaid, the

said McQuade having dug a hole three or four feet square in the

middle of the sidewalk, which he keeps filled with water when the

same is not filled by the fall of rain; that the said John McQuade

has himself informed this deponeit that he disturbed and tore up

the said pavement aforesaid and broke down the curb-line thereof,

and that be will not permit the said pavement to be relaid, and that

if it should be relaid he will tear it up again, and as often as it is

relaid and as fast as it is relaid; that deponent has reset the curb-

line in front of said premises, which et the present time remains

undisturbed ; that the aforesaid pavement, when laid in front of

said McQuade’s property, consisted of flagstone six feet in

9 width laid in the middle of said pavement, with bricks on

the house side of said flags and also on the curb side of said

flags; that the said McQuade has torn up the said flagstones and

also all of the bricks aforesaid, aud carted the same into and keeps

them in the rear yard of his said premises, where the same now

remains.

And deponent further says, that he has lived in the city of Tren-

ton for the past thirteen years; that he is well acquainted with the

property of the said Jolin McQuade on the northerly side of Ferry

street, in front of which the grade of Ferry street was changed by

virtue of ap ordinance of the common council as hereinbefore men-

tioned, and has been acquainted with the said premises and locality

in which it is situate for the last twenty-five years; that at the time

the change of grade was made on portions of Lamberton and Ferry

streets, in the city of Trenton, under and by virtue of the ordinance

aforesaid, and before this deponent becaine street commissioner of

the city of Trenton, the Pennsylvania Railroad Company, who, by

its agents, servants and workmen, actually made the change of said

grade, provided the means to carry off al! surface water whose then

present course was diverted or changed by the aforesaid alterations

2—399

U JOHN MCQUADE Vs.

in said streets, by placing in and under said streets a good and suffi-

cient surface-water drain; that deponent was frequently in the lo-

cality aforesaid where such changes of grade were made and saw

the aforesaid drains built and put in, and that since deponent has

been street commissioner as aforesaid, he has had and still has offi-

cial knowledge of the fact of the existence of said drain, and knows

that it is sufficient for the purposé for which it was constructed and

intended.

JOHN M. RULON.

Sworn and subscribed before me, this thirteenth day of March,

1894.

THOS. E. KEATING,

Notary Public.

State or New Jersey, |

County of Mercer, Jj ais

10 Joseph R. Gilkyson, of full age, being duly sworn accord-

ing to law, on his oath says, that he is the freight agent of

the Pennsylvania Railroad Company in the city of Trenton; that

as such agent he had charge of the laying of additional tracks of

the Pennsylvania Railroad Company through a portion of the city

of Trenton, in the years eighteen hundred and ninety, ninety-one

and ninety-two; that on or about the — day of June, eighteen hun-

dred and ninety-two, under aud by virtue of the power and au-

thority given to said Pennsylvania Railroad Company by an ordi-

nance entitled “Au ordinance to change the grade of a portion of

Lamberton and Ferry streets, and to widen Bridge street, between

Union and Warren streets, also to vacate a portion of Bridge street,”

passed February seventeenth, eighteen hundred and ninety-one,

and also in pursuance of the authority and direction of John M.

Rulon, street commissioner of the city of Trenton, deponent, by

and with the aid of certain servants, agents and employees of the

said Pennsylvania Railroad Company, did change the grade of

Ferry street in said city of Trenton, in front of the lands and prem-

ises of John MeQuade, on the northerly side of Ferry street; that

previous to said — day of June, eighteen bundred and ninety-two,

-the grade of the road of said Ferry street beyond the curb-line of

the property of said McQuade, had been changed in accordance

with said ordinance, and that on said last-mentioned day and year

deponent caused the sidewalk to be laid and the curb and gutter to

be set in front of said McQuade’s premises, at the said grade so

established as aforesaid: that while the servants, workmen and

agents of said railroad company, who were so employed in chang-

ing the grade of said sidewalk and relaying the said pavement

thereon, and resetting the said curb-line and gutter thereof, the said

John McQuade interfered with the work by not only notifying and

warning the deponent and his assistants aforesaid to absolutely de-

sist and refrain from changing the grade of said sidewalk and relay-

ing the said pavement and resetting the said curb, but also endeav-

THE INHABITANTS OF THE CITY OF TRENTON.

ored forcibly to interfere with and obstruct said work, and while

11 deponent was then and there present as aforesaid, the said John

McQuade, from the second story window of his house on the

lot of land in front of which said grade was being changed and said

pavement and curb and gutter relaid and reset, threw hot and cold

water on the men so engaged in the work aforesaid, himself, and

had several other persons throwing water, both hot aud cold, out of

the second-story window on the men so at work aforesaid; that said

work occupied the space of about two hours as nearly as deponent

can now recollect, and that during all that time the said McQuade

interfered with and tried to prevent the said work in the manner

aforesaid in this deponent’s presence; that in order to prosecute said

work, and in a measire preventing said men so at work being

deluged with water from said McQuade and his abettors aforesaid,

the workmen so engaged in said work spread a large canvass on

poles over their heads in front of the property of said McQuade and

maintained the same during all the time that said work progressed ;

that since the work aforesaid was completed aud the said sidewalk

regraded and pavement relaid and curb and gutter reset at the grade

established by said ordinance, the same has been torn up and the

flagstones and bricks composing said pavement removed and a large

hole dug in the middle of said pavement, and the curbstones pushed

out of place and off the line on which they were set; that deponent

saw this condition of affairs the next day after the said sidewalk was

regraded and pavement relaid and curb and gutter reset; and that

on one occasion since said last-mentioned occurrence, said John

McQuade has told this deponent that he would not permit said side-

walk to be regraded and pavement relaid and curb reset, and that

he would kill this deponent or any other man who would attempt

to regrade said sidewalk, relay said pavement or reset said curb and

gutter.

And deponent further says, that at the time of the change of the

said grade on the aforesaid portions of Lamberton and Ferry streets,

the Pennsylvania Railroad Company, by its agents, servants and

workmen, under the supervision of this deponent, provided

12 means to carry off all surface water whose then present course

was diverted or changed or would be diverted or changed by

the aforesaid alterations in said streets, by placing in and under

said streets a good and sufficient surface-water drain in accordance

with the proviso for that purpose in said ordinance contained ; and

deponent further says that since the putting in of said drain, hitherto

and until and at the present time, he, this deponent, has personal

knowledge of the fact of the existence of said drain, and knows that

it is sufficient for the purpose for which it was constructed and in-

tended.

J. R. GILKYSON.

Sworn to and subscribed before me, this thirteenth day of March,

1894.

WM. J. RYAN,

Notary Public.

12 JOHN MCQUADE Vs.

County of Mercer,

William Hartman, being duly sworn according to law, on his

oath says, that he is captain of police in the city of Trenton, in

charge of the second police district; that in and during the month

of June, eighteen hundred and ninety-two, deponent was such police

captain of said second district, in which ‘s situate the property of

John McQuade, on the north side of Ferry street, in said city; that

on the seventeenth day of June, in the year last aforesaid, deponent

received a message from the chief of police of said city of Trenton,

stating that the mayor and president of the board of public works

of said city had given orders to have a detail of police at said Me-

Quade’s premises to prevent any breach of the peace pending the

relaying of the pavement and the resetting of the curb and gutter

in front of said MeQuade’s said premises, to conform to the grade

established by ordinance of common council entitled “An ordinance

to change the grade of a portion of Lamberton and Ferry streets,

and to widen Bridge street, between Union and Warren streets,

also to vacate a portion of Bridge street,” passed February seven-

teenth, eighteen hundred and ninety-one; that deponent

13 went to said premises on said day, taking several officers

with him ; that deponent called on the said John McQuade,

in his house on said premises, and informed bim by whose orders

he was there and for what purpose he was there ; that the said John

McQuade then and there told this deponent that he, McQuade, ig,

nored the orders of the mayor and president of the board of public

works and chief of police and any other city authority ; that he, Me-

Quade, would not allow any one to go to work there relaying his

pavement and resetting said curb and gutter; that when deponent

met McQuade on his said premises as aforesaid the said McQuade

had a pitchfork in his hand; that when the men went to work to

relay said pavement and reset said curb and gutter as aforesaid, the

said John McQuade shoved and pushed three or four of the men so

at work; that he also cut the cord or plumb line that was stretched

along the curb to give the grade; that deponent then and there

placed the said MeQuade under arrest, and sent him to the second

district police station in charge of an officer; that the said Me-

Quade immediately procured bail and returned to said premises in

about a half an hour after the time of his arrest as aforesaid ; that

while the men proceeded with their work of relaying said pavement

and curb and gutter they were iuterfered with by persons in the

house of said John MeQuade throwing water on the men from the

upstairs windows, and that to enable the men to proceed with their

work aud prevent themselves being deluged with water, they

stretched a canvass over their heads on poles while the said work

was progressing.

Strate or New Jersey, \ es

WM. HARTMAN.

Sworn and subscribed before me, this thirteenth day of March,

A. D. 1894.

G. V. PACKER,

Notary Public for N. J.

CO. ae

THE INHABITANTS OF THE CITY OF TRENTON. 13

14 ~—s An ordinance to change the grade of a portion of Lamberton

and Ferry streets and to widen Bridge street, between Union

and Warren streets, also te vacate a portion of Bridge street.

Whereas, the Pennsylvania Railroad Company, lessee of. the

United New Jersey Railroad and Canal Company, in pursuance of

authority conferred upon them for that purpose by the legislature

of this State, are engaged in widening their railroad in the city of

Trenton and making a four-track road thereof through said city ;

and whereas, the said changes in the said railroad cannot be prop-

erly made unless the grade of a certain portion of Lamberton and

Ferry streets be altered and also certain portions of Bridge street be

vacated as hereinafter provided ; and whereas, the said changes in

the said railroad will promote the interests of the said city of Tren-

ton; and whereas, the said Pennsylvania Railroad Company have

agreed with the Inhabitants of the City of Trenton that they will

furnish and pay for the labor and materials necessary to make the

said alterations, and to indemnify them against any expenses or

losses that may be incurred as damages to property affected, or

otherwise, by the said change of grades and the said vacation of

portions of said street; now, therefore, .

The Inhabitants of the City of Trenton do ordain :

Section 1. That the grade of a portion of Ferry street, beginning

ata point in the north curb-line of said street, at a distance of 118.5

feet west from the west curb-line of Lamberton street, at an eleva-

tion of 72.17; thence ascending eastwardly, with a grade of six feet

per hundred, for a distance of 118.5 feet to the west curb-line of

Lamberton street, where the elevation will be 79.28 ; thence across

Lamberton street to the east curb thereof, where the elevation will

be 80.70; thence de-cending eastwardly, with a grade of three feet

per hundred, for a distance of 128 feet toa point in the present

curb-line of Ferry street, where the elevation will be 76.86 ; also be-

ginning ata point in the south curb-line of Ferry street, at a dis-

tance of 97 feet west from the west curb-line of Lamberton street,

where the elevation will be 72.14; then ascending eastwardly,

15 with a grade of six feet per hundred, for a distance of 97

feet to the west curb-line of Lamberton street, where the ele-

vation will be 77.96; thence ascending eastwardly, with a grade of

about three feet per hundred, to a point in the south curb-line of

Ferry street, 23 feet east from the east curb-line of Lamberton street,

where the elevation will be 80.00; thence descending, with a grade

of three feet per hundred, for a distance of 105 feet to a point in the

south curb-line of Ferry street, where the elevation will be 76.85.

Also to chavge the grade of a portion of Lamberton street, begin-

ning ata point in the west curb-line of said street about 831 feet

south from the southerly curb-line of Market street, where the eleva-

tion will be 76.00; thence ascending southerly, with a grade of eight

feet per hundred,a distance of 175 teet to a point 12 feet north from

the north end of a proposed new bridge, where the elevation will be

90.0; thence crossing the proposed bridge, with a vertical curve, to

it point on the south side thereof, where the elevation will be 89.6;

14 JOHN MCQUADE Vs.

thence’descending, with a grade of cight feet per hundred, a distance

of 129 feetito the north carbine of Ferry street, where the elevation

will be 79.28; thence crossing Ferry street to the south curb thereof,

whereof the elevation will be 77.96 ; thence descending, with a grade

of seven feet per hundred, a distance of 60 feet to a point in the

eg te ae of Lamberton street, where the elevation will

e 73.76; also beginning at a point in the east curb line of Lamber-

ton street, about 831 feet south from the southerly curb-line of Market

strect, where the elevation will be 76.00; thence ascending southerly,

with a grade of eight feet per hundred, a distance of 175 feet to a

point on the north:end of a proposed new bridge, where the eleva-

tion will be 90.0; thence crossing the proposed bridge with a vertical

curve to a point 18 feet south from the south end thereof, where the

elevation will be 90.0; thence descending, with a grade of eight feet

per hundred, a distance of 116.25 feet to the north curb-line

16 of Ferry street, where the elevation will be 80.7 ; thence cross-

ing Ferry street to the south curb thereof, where the elevation

will be 79.31; theuce descending, with a grade of seven feet per

hundred, a distance of 66 feet to a point in the present east curd of

Lamberton street, where the elevation will be 74.69, be and the same

is hereby changed.

Secrion 2. That the following portions of Bridge street be vacated,

namely: No. 1. Beginning at a point on the north side of Bridge

street, 36,5, feet. westerly from the west side of Union street, and 12,',

feet distant from the centre line of said railroad company’s proposed

new tracks; thence parallel with and 12,7, feet distant from said

centre line, with a radius of 1,885,5, feet, a distance of 162°, feet to

the east side of Decatur street; thence north, one degree sixteen

ininutes east, 24,5, feet to the fence along the present tracks of the

said railroad company ; thence along said feuce north, 78 degrees 44

minutes east, 53,7, feet, and south, nine degrees 42 minutes east 3

feet, and north, eighty degrees 18 minutes east, 24,5, feet, and south,

89 degrees 55 minutes east, 827, feet to the place of beginning. No. 2.

Beginning at a puint on the west side of Decatur street and the fence

along the said railroad company’s present tracks; thence along the

west side of Decatur street south, one degree 16 minutes west, 24,5,

feet ; thence parallel with and 127, feet distant from the said new

centre line of said railroad company’s proposed new tracks, with a

radius of 1,885,°5 feet, a distance of 141 feet to the east side of

Warren street: thence along the east side of Warren street north,

one degree 30 minutes east, 24,4; feet; thence along the fence

along the present tracks of said railroad company north 82 de-

grees 56 minutes east, 140 feet to the place of beginning. No. 3.

Beginning at the southwest corner of Warren and Bridge street ;

thence along the south side of Bridge street north, 88 degrees 19

minutes west, 228,45; feet, and south, 62 degrees 30 minutes west,

12,7; feet, and south 49 degrees 32 minutes west 19% feet to the east

side of Fair street; thence along the east side of Fair street north,

one degree 12 minutes east, 32,5; feet to the stone wall along

17 the present tracks of said railroad company ; thence along

the stone wall north, 89 degrees 11 minutes east 253,%) feet to

THE INHABITANTS Of THE CITY OF TRENTON.

the west side of Warren street; thence along the west side of Warren

street south, one degree 30 minutes west, 24,5, feet to the place of

beginning.

All the said change of grades and vacation of portions of said

streets are to be made in strict conformity with the profiles of said

changes of grade, submitted with the applications of the Pennsyl-

vania Railroad Company, and dated Sannin 29ti, 1890, and

January 27th, 1891, and numbered 4573 and 4584, respectively, and

in accordance with a plan of said vacation of portions of said street,

dated June 3d, 1890, numbered 4276, made by the said Pennsyl-

vavia Railroad Company, and now on file in the office of the city

surveyor, and the city surveyor is hereby directed to record each of

the grades and lines hereby changed in the street book ; and the

Pennsylvania Railroad Company are authorized to erect an iron

bridge over their four tracks on the line of said Lamberton street

in accordance with plans made by the Pennsylvania Railroad Com-

pany and numbered 4572, now on file in the office of the city sur-

veyor, provided that the said Pennsylvania Railroad Company will

at its own expense lay-out, grade, curb, pave and dedicate a new

street thirty (30) feet wide between Warren and Fair streets, and

will widen Bridge street, between Union and Warren streets, to a

width of not less than thirty-five (35) feet,as shown on a plan dated

June 3, 1890, made by the Pennsylvania Railroad Company and

now on file in the office of the city survevor, and will dedicate the

part so widened to the city of Trenton, and will provide means to

carry off all the surface waters whose present course will be diverted

or changed by the aforesaid alteration and changes in said streets,

and provided the said Pennsylvania Railroad Company will file

with the city solicitor a satisfactory agreement with the Inhabitants

of the City of Trenton, that they will furnish and pay for the labor

and materials necessary to make the said alterations, and indemnify

the said Inhabitants of the City of Trenton egainst any ex-

18 penses or losses which may be incurred as damages to prop-

erty affected or otherwise by the said changes of grades and

said vacation of portions of said street, which could be enforced

agaiust the city by suit, and shall within thirty (30) days after the

passage hereof file a satisfactory bond with the city solicitor for the

faithful performance of said agreement before mentioned ; and this

ordinance shall not go into effect until the said bond is filed and

the expense of the passage of this ordinance is paid.

Pussed common council, Feb. 17, 1891.

GEO. R. WHITTAKER, President.

Attest: JNO. C. OWENS.

Approved Feb. 21, 1891.

A. A. SKIRM, Mayor.

1, Charles J. Fury, city clerk of the city of Trenton, and keeper

of the records of the common council thereof, do hereby certify that

the foregoing is a true copy of an ordinance of said city duly passed

by the common council thereof, on February seventeenth, eighteen

16 JOHN MCQUADE VS,

hundred and ninety-one, and approved by the mayor of said city

on February twenty-first, eighteen hundred and ninety-one, entitled

“An ordinance to change the grade of a portion of Lamberton and

Ferry streets, and to widen Bridge street, bebween Union and War-

ren streets, also to vacate a portion of Bridge street,” as the same

remains of record in my office.

In testimony whereof, I have hereunto set my hand and affixed

the common seal of said city of Trenton, this twelfth day

[u.s.] of March, eighteen hundred and ninety-four.

CHAS. J. FURY, City Clerk.

Atruecopy. -

ALLAN L. McDERMOTT, Clerk.

19 Answer.

The answer of John McQuade to the bill of complaint of the In-

habitants of the City of ‘Trenton.

This defendant, John McQuade, to the bill of complaint of the

Inhabitants of the City of Trenton, or to so much thereof as this

defendant is advised it is material or necessary for him to answer,

answering says:

I. That he admits that the complainants area municipal corpora-

tion, as set forth in the bill of complaint.

II. That he admits that the common council of the city of

Trenton, on or about the seventeenth day of February, eighteen

hundred and nivety-one, did pass an ordinance entitled “An ordi-

nance to change the grade of a portion of Lamberton and Ferry

streets, and to widen Bridge street, between Union and Warreu

streets, and also to vacate a portion of Bridge street,” in said city of

Trenton, and that said ordinance was approved by the mayor of

said city and published, as in said bill of complaint meutioned.

III. And this defendant further answering says, that he has no

information or knowledge concerning the allegations in said bill of

complaint that the change of grade of Lamberton and Ferry streets,

as set forth in said bill of complaint, was made and that said

ordinauce was passed at the special instance and request, or by

the procurement of the Pennsylvania Railroad Company upon the

terms and conditions in said bill of complaint set forth, save the

information and knowledge conveyed to this defendant by the al-

legations in said bill of complaint, and the recitals contained in

the aforesaid ordinance and common rumor, and that therefore

this defendant can neither admit nor deny such allegations in

said bill of complaint made, but leaves the complainants to make

such proof thereof as they may be advised is necessary.

IV. And this defendant further answering says, that he

20 admits that the grades of the said Ferry and Lamberton

streets, since the passage of the aforesaid ordinance, have

been altered, and that the Pennsylvania Railroad Company has

dedicated a new street between Warren and Fair streets, aud

widened Bridge street between Union and Warren streets, and dedi-

THE INHABITANTS OF THE CITY OF TRENTON. 17

cated the part so widened to the city of Trenton, but this defendant

has no information or knowledge, other than what has come to him

through the allegations contained iu the said bill of complaint and

through common rumor, that the said Peunsylvania Railroad Com-

pany, at the time of making the said change of grade, did pay the

expense thereof, or that said company did file with the city solicitor

a satisfactory agreement and bond with the Inhabitants of the City

of Trenton that it would furnish and pay for the labor and mate-

terials necessary to make said alterations and indemnify the said city

against any losses or expense which might be iucurred as damages

to property affected by said change of grades, or that said company

paid the expense of the passage of said ordinance, including its

printing and publication, or that said company performed all and

singular the things on said company’s part required to be done

before said ordinance should have force and effect, and therefore

this defendant can neither admit nor deny such allegations made

in said bill of complaint, and leaves the complainants to make such

roof thereof as they may be advised is necessary.

V. And this defendant further answering says, that he denies the

allegation in said bill of complaint contained that said Pennsyl-

vania Railroad Company provided means to carry off all surface

water, the course of which was diverted or changed by the altera-

tions made as aforesaid in said Ferry and Lamberton streets, and

on the contrary, says that the provisions made for carrying off said

surface water are utterly inadequate, aud this defendant’s property, .

in consequence of the inadequate provisions made as aforesaid, bas,

ina time of heavy rain, been damaged by the overflow of water

into defendant’s cellar from the street in front of this defendant’s

house and lot.

VI. And this defendant further answering says, that he

21 admits that he owns and occupies the house and lot on the

northerly side of Ferry street, in said city of Trenton, as iu

said bill of complaint mentioned.

VII. .And this defendant further answering says, he admits that

some time in the month of June, eighteen hundred and niuety-two,

Joseph R. Gilkyson, in said bill of complaint mentioned, by his

workmen and employees, did reset aud relay the pavement and curb

in front of this defendant’s property, and that the same was done

without the consent of this defendant and against his protests and

his efforts to prohibit the same; but that this defendant has no in-

formation or knowledge, other than that conveyed to him in and by

the said bill of complaint, as to whether such work was done by said

Gilkyson and his workmen aud employees under the authority of

the street commissioner of the city of Trenton, or otherwise, and can

therefore neither admit nor deny this allegation in the bill of com-

plaint contained, and leaves the complainants to make such proof

thereof as they may be advised is necessary.

VIII. And this defendant further answering says, that he admits

that after the said pavement upon the sidewalk in front of his

premises was relayed as aforesaid, and after said curb was reset as

aforesaid, this defendant did take up said pavement and remove said

3—399

18 JOHN MCQUADE VS.

curb, and that the said pavement has not since that time, been

relayed.

IX. And this defendant further answering says, that the facts and

circumstances connected with the attempt to alter the grade of Ferry

street, in front of this defendant’s house and lot, and to relay the

curb and pavement unon the sidewalk in front of this defendant’s

house and lot, relating to the same matters complained of — the said

bill of complaint, are as follows:

That, prior to the passage of the aforesaid ordinance, this defendant

had erected houses upon the lots owned by him and fronting on said

Ferry street, in accordance with the grade of said Ferry street, as

the same had been established by the municipal authorities of the

city of Trenton; that the said grade had a descent in front of

22 his property from east to west, and on beyond his property

to the Trenton water power, into which were discharged the

surface water flowing through said street; that about the time of

the passage of said ordinance, the Pennsylvania Railroad Company,

being desirous of widening its road-bed so as to permit of the laying

of a four-track road, built over its tracks in the line of Lamberton

street, for the use of the public, an elevated bridge; that in order

that said elevated bridge might be accessible, it was necessary to

build approaches thereto by depositing in Lamberton street and in

Ferry street, in frypnt of the property of this defendant, large quan-

tities of dirt, and to the end that said Pennsylvauia Railroad Com-

pany might construct said elevated bridge in Lamberton street, the

said ordinance was passed, purporting to make a change or altera-

tion in the portions of Lamberton and Ferry streets adjacent to said

elevated bridge, but this defendant is advised, and therefore insists,

that the changes of grade attempted to be authorized by said ordi-

nance were in no proper or legal sense such a change or alteration

of grades of the streets as is authorized by the charter of the city of

Trenton or by any law of this State, but that the alteration attempted

to be authorized by the said ordinance was a work relating to, and

only to, the construction of approaches to the said elevated bridge,

and therefore was a work incidental to the construction of said ele-

vated bridge, and not a matter over which the said common council

could legally exercise any authority whatsoever, by ordinance or

otherwise.

X. And this defendant further answering says, that by the at-

tempted alteration of the grades as aforesaid, the surface water in

times of heavy rain Gves now, instead of passing through the street

in front of this defendant’s property from east to west to the water

power ‘as it formerly did, is now caused to accumulate in the said

street immediately in front of this defendant’s property, the grades

of the street descending in both directions to a lowest point in front

of this defendant’s property, and that said surface water, in

23 times of heavy rain, is likely to overflow the sidewalk and to

flow into this defendant’s cellar, and thereby doing great

damage.

XI. And this defendant further answering says, that if the side-

walk in front of this defendant’s property be raised to the grade

THE INHABITANTS OF THE CITY OF TRENTON. ‘

mentioned in the aforesaid ordinance the cellar windows of the

house in which this defendant resides will be closed up, or prac-

tically so, and this defendant will be denied his right to light and

air in the cellar of his said house; aod further, that this defend-

ant’s free access from his said property to the said street will be

greatly impaired.

XII. And this defendant further answering says, that he is ad-

vised and, therefore, wil] insist that even if the allegations in said

bill of complaint are all true, it appears thereby that the attempted

alteration of the grade aforesaid in said Lamberton and Ferry

streets, and especially in front of this defendant’s property, is a

work carried on by, at the expense of, and for the sole benefit of the

Pennsylvania Railroad Company, and that said company have no

power or authority under the law to do the said work, and thereby

damage the property of this defendant, without first making com-

pensation to this defendant for the damage or loss which he will

sustain by reason of the said work, and that he has the right to

prevent the completion of the said work until he shall have received

full compensation for all damages which he will sustain by the said

work; and this defendant further submits that the complainants are

not entitled to the relief prayed for in their bill of complaint, and

this defendant asks that he may have the same benefit of this de-

fense as if he had demurred to the said bill of complaint for want

of equity therein.

Aud this defendant further answering says, that he is advised and,

therefore, will insist that by the allegations contained in the said

bill of complaint, it appears that the complainants have no interest

in the subject-matter of said bill of complaint, and this defendant

prays that he may have the same benefit of this defense as if he

had demurred to said bill of complaint for want of equity

therein.

24 And this defendant further answering says, that he is ad-

vised and, therefore, will insist that under the constitation

of this State he has the right to free excess to said Ferry street from

his said property fronting thereon, and to the free admission into

his house fronting on said Ferry street of light and air from said

street; and further, that no alteration in the grade of said street in

front of his property and no exclusion of light and air from his said

house can be lawfully made unless and until a proper method of

procedure shall have been prescribed by the legislature of this State

for the exercise of the power of eminent domain, whereby this de-

fendant may receive proper and adequate compensation for the

damage that will result to him by such alteration of grades and ex-

clusion of light and air, and this defendant prays that he may have

the same benefit of this defense as if he had demurred to the said

bill of complaint for want of equity therein.

Allwhich mattersand things this defendant is ready to maintain,

aver and prove, and prays to be hence dismissed with his cost in

this behalf most wrongfully sustained.

20 JOHN MCQUADE Vs.

STaTe oF New Jersey, |

: - 88:

County of Mercer, J

John McQuade, of full age, being duly sworn according to law,

on his oath says, that he is the defendant mentioned in the fore-

going answer; that the same has been read to him, and he knows

the contents thereof; that the said answer is true, except as to mat-

ters stated to be on information and belief, and as to such matters

he believes it to be true.

And this deponent further says, that prior to the passage of the

ordinance mentioned in the bill of complaint filed in this cause, the

grade of Ferry street in front of the property owned by this depo-

nent was a descending grade from east to west, and that the surface

waters flowing through the gutters of said street were discharged

into the Trenton water power; that after the passage of the said

ordinance the Pennsylvania Railroad Company erected a

25 bridge over its tracks in Lamberton street at such great height

as to necessitate the building of approaches thereto in order

to make the same accessible; that the changes of grade attempted

to be authorized by the said ordinance were designed only for the

purpose of fixing the grade of the approaches to the said elevated

bridge; that, if the sidewalk in front of this deponent’s property be

constructed on the grade of said approaches to said elevated bridge,

the cellar windows of the house in which tis deponent resides will

be alinost completely buried beneath the surface of the sidewalk,

and the light and air thereby excluded from this deponent’s prop-

erty, and that the stoop leading to the front door of this deponent’s

house will also be partially buried beneath the surface of the side-

walk.

And this deponent further says, that the work of constructing

the said approach to said bridge in front of this deponent’s property

has been done with this deponent’s consent, and against his most

vigorous protests and his active efforts to prohibit it, and that no

estimate under or pursuant to any legal proceedings whatsoever of

the damages he will sustain by reason of the construction of the

said approach and the alteration of said grade has ever been made,

and that no agreement has ever been made concerning said dam-

ages between this deponent on the one hand and the complainants

or the Pennsylvania Railroad Company on the other, and that

this deponent has never received, either from the complainants or

from the Pennsylvania Railroad Company, any compensation for

such damages.

Sworn to and subscribed before me, this — day of April, A. D.

1894.

THE INHABITANTS OF THE CITY OF TRENTON. 21

26 Testimony.

Mr. John Rellstab for the complainant.

Mr. RK. 8. Woodruff and Mr. W. M. Lanning for the defendant.

Transcript of shorthand notes in the above- stated cause taken before

his honor John ‘IT. Bird, V.C., at the state-house, in Trenton, N.J.,

on November 28th, 15% O14.

Mr. Reuistas: It is agreed that the affidavits annexed to the

bill of complaint and the answer may be used on the argument at

final hearing with the other proofs offered at the final hearing.

Mr. Lannina: That is correct.

JoHn McQuapkg, being duly sworn in his own behalf, testifies as

follows:

Direct examination by Mr. LANNING:

Q. You are the defendant in this case?

A. Yes, sir.

Q. You are the owner, I believe it is admitted, of two houses on

Ferry street, are you not, in front of which the work spoken of in

the pleadings was done?

A. Yes, sir.

Q. Do you remember the occasion of the passage of an ordinance

authorizing the grading, or pretending to authorize the alteration

of the grade of Ferry street?

A. Yes, sir.

Q. That was passed, I think, by the common council or board of

works; which?

A. Common couacil.

Q. Did you attend any meeting of the common council when that

matter was before them for consideration ?

A. Yes, sir.

Q. For what purpose?

A. To object.

27 Q. Did you object ?

A. Yes, sir; I did.

Q. Before the common council ?

A. Yes, sir.

Q. Objected to what?

A. The changing of the grade on Ferry street.

Subject to the passage of the ordinance did you at any time

make any objections to the alterations of this grade?

A. did.

Q. State whether you made any objections between the time of

the passage of the ordinance and the beginning of any work upon

that street ?

A. They were in contemplation of making a new street on the

north of the railroad, and abandoning changing these grades, aud

22 JOHN MCQUADE VS.

I went around with Mr. Calwell to get signatures to that paper ob-

jecting to the change of the street.

Q. Was that before any change was made ?

A. It was after the ordinance was passed.

Q. But before any alteration in the grade of Ferry street was

made”

A. Yes, sir; before; I may say also that they abandoned this pro-

posal ; they tried it, | was in favor of it, but they came back to the

original plan, the change of the grade.

Q. What I want to know is whether you at any time made any

objection to the changing of the grade and the work on Ferry street

before the ordinance ?

. I did; Mr. Bowles came to me.

Who is he?

Agent of the railroad company.

What was his position ?

I believe he was engineer for the railroad.

You mean the Pennsylvania railroad ?

Yes, sir.

You went to Mr. Bowels?

. No, sir; he came to me.

. Was that before any work was done; I am speaking of any

work on your property ?

28 A. Before any work was cominenced.

Q. What was said ?

A. He said he wanted to see me; I was present at the time and

went to his office and he told me that they were going to make this

change, and [ told him I wassorry; I told him I would rather they

would open the other street, but he came to that conclusion he said

and he asked what I would want; I told him that I could not tell

him at that time; he said something about $500; I said he might

as well offer me 500 cents; and a few days afterwards I met him on

Centre street.

Q. Mr. Bowles?

A. Yes, sir; and he asked me if I had made my mind up; I said

I wished they would not make that change, but as long as they

were going to do it [ wanted $3,000; he said they would not give

that much; I said Do not touch anything that belongs to me, and

since that they have commenced ; they were coming to the raise at

the junction of Ferry and Lamberton streets

Q. Was that pipe used ?

A. Previous to this change of grade, so that when they would

change the grade they would be ready to conduct the water.

Q. In front of your property ?

A. Not in front of my property ; it was constructed on the south

side of the street; I live on the north side of Ferry street, and when

it came across the street | was absent; I told the men not to disturb

the gutter-stones and the street outside the gutter-stones, not to

touch them; I would not allow it.

Q. You told the men that were at work ?

A. Yes, sir; and so when they were laying or beginning to lay

OrOPereorer

mY

THE INHABITANTS OF THE CITY OF TRENTON.

this pipe across the street ; they had come up as far as the water

power, and begun tiere at my place.

Q. Did you at any time later make any objection to the work ?

A. I did; I would not allow them to put it in.

Q. Put what in?

29 A. The inlet that was to receive this water and this pipe ;

Mr. Bowles came to me and he said (interrupted )——

Q. At this time, when you would not allow them to put in the

inlet, had any alteration in grade been yet commenced ?

A. None whatever.

Q. Did you subsequently make any objections ?

A. I made it all the time up to the present moment.

Q. When they attempted to make any alteration in the grade in

front of your house, did you make any altercation ?

A. That was on the seventeenth of June, 1893; that was eighteen

months afterwards.

Q. That was when the pavement was laid ?

A. Yes, sir; when they raised the pavement.

Q. At that time what did you do?

A. I resisted then, did I not?

Q. There were men working there?

A. They came and was tearing off my bricks, and I objected to

Q. What men were they ?

A. Railroad company.

Q. Italians?

A. Yes, sir; they were in charge of a young man named Mertit,

I think, and he and I had a little collision about it, and we pulled

one another around the sidewalk, and IL told him I didn’t want the

bricks torn up, and I went uptown to get a warrant for assaulting

me, and he came to get one for me, and by the time I got back the

bricks were removed.

Q. The bricks that were on either side of the sidewalk were re-

moved ?

A. Yes, sir.

Q. The sidewalk through the middle were stone and bricks on

the sides of the stone?

A. Yes, sir.

Q. The bricks were torn up, but the grade was not changed ?

A. That was 11 o’clock, I think, but by the time I got back

30 the bricks were removed—I don’t know where, for about 2

o’elock, the first notice I had of it Captain Hartman came in

and said he was sent down by the authorities to prevent me from

interfering with those men in doing that work.

Q. Captain Hartman was a policeman here and had charge of a

lot of men?

A. Yes, sir; and restrained me from interfering with the men.

Q. What did you do?

A. Cat the line that they had in setting and resetting the curb-

stone, and they put me under arrest ; [| was taken out to the station-

house, and gave bail to appear; by the time I came back there was

94 JOHN MCQUADE VS.

water-throwing; I think they were changing the grade in front of

my place; flagstones were all out, and raising it with dirt.

Q. Then, at the time you now speak of, the alterations in grade

had partly been made on June 17th?

A. On June 17th they commenced to change the grade.

Q. On June 17th they commenced to change the grade of the

sidewalk ?

A. Yes, sir.

Q. Previous to June 17th, had they already altered the grade of

the streets between the curbs ?

A. No, sir. :

Q. I mean the street itself?

A. No, sir; certainly not; the grade certainly never came any

farther than where it was intended it would on the sidewalk and

the sidewalk neither was changed ; neither was the street.

Q. Was the grade of Ferry street which formed the approach up

to the bridge altered before June 17th?

A. To where the grade is now on the sidewalk ; no, sir.

Q. Had any dirt been put in the street prior to that time, prior

to June L7th ? ;

A. Not to where the grade is changed now; it was shortened 21

feet by resolution ; the grade came no farther than where it was put

in by resolution.

Q. Then I understand you to say you commenced your

31 objection to this proposed resolution with common council

before they passed the ordinance ?

A. I have; yes, sir.

. And that you continued making objections from that time on ?

I did; yes, sir.

As you ‘said “to the present moment

Yes, sir.

Atany time during this contest have you removed any portion

of the sidewalk in front of your house?

A. Yes, sir.

Q. What portion”

A. Flagstones.

Q. That is the flagstones running through the middle of the side-

walk ?

A. Yes,sir; I disturbed that the seventeenth of June, and beeause

the railroad company succeeded in changing the grades they had

thrown water on them and so on from the house that time of re-

moving the flagstones and disturbing the curbstone, and the flag-

stones remained until the seventh of March, and on the seventh of

March, 1593, T removed them into my yard.

Q. Did you ever remove the bricks on the other side of the grade

which formed the sidewalk ?

A. No, sir; they never were removed.

Q. You spoke a moment ago of having been taken away, when

you got back they were gone, that was the original sidewalk before

any alteration ?

A. Yes,sir; and the bricks have never been laid on the sidewalk

since.

»

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PAD Desde I aks Bw Aen ca ae, . ‘

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THE INHABITANTS OF THE CITY OF TRENTON.

Cross-examination by Mr. Retisran:

Q. When did you appear before common council in reference to

changing the grade?

A. During the contemplation of these changes.

Q. Can you give the date’?

A. No, sir.

Q. Did you appear more than once?

A. I believe I was there several times; I spoke myself in opposi-

tion to it.

32 Q. Did you speak more than once?

A. No, sir; there were several propositions before common

council in reference to change of grades in order to allow the rail-

road company to lay the four-track system.

Q. Through the city of Trenton, was there not?

A. Yes, sir.

Q. There was one that contemplated the vacation of a portion of

Lamberton street; is that so?

A. Yes,sir; I think so.

Q. Was it not that one you spoke against, the one that conteimn-

plated the vacation of part of Lamberton street ?

A. I did also speak before that.

Q. Did you speak more than once?

A. No.

Q. Then your objection was to that contemplated change, which

meant the vacation of part of Lamberton street?

A. Yes, sir.

Q. Asa matter of fact youappeared only before common council

once and spoke against the proposed change of grade ?

A. Yes, sir.

Q. And that proposition was before common council at the time

it was considering that plan, which meant the vacation of Lamberton

street, a portion of it?

A. I think that was not the case; it was about the raising of the

bridge that I objected to.

Q. Are you sure?

A. I think so.

Q. At any rate, you went before the common council and spoke

against the attempted change once; the first change was in reference

to the vacating and changing in Lamberton street, was it not?

A. Yes, sir.

Q. If that plan had been carried out, there would have been no

change in the grade over Ferry street on Lamberton street, reaching

the present bridge, would there?

A. The grade would have been the same.

33 Q. The grade would have been the same if they hadn't

raised the bridge ?

A. Of course, then, not; what | wanted was not to disturb Ferry

street where [ live. :

Q. The change of grade as actually consum-ated meant the raising

4—399

gat ae

26 JOHN MCQUADE VS.

of the street toward the bridge on Lamberton street, crossing the

railroad and extending below Ferry street, did it not?

A. Yes, sir.

Q. And that necessitated the building of that embankment on

Ferry street north toward Ferry street toward you- premises ?

A. Westerly.

Q. Easterly ?

A. Yes, sir; you are right.

Q. At any rate it was an approach towards your premises ?

A. Yes, sir.

Q. The change of grade then actually down on Ferry street is

from Lamberton street toward your house ?

A. Yes, sir; they diverted the course of the water which used to

cross Lambertoa street on the surface; now the water comes east

and west, from east and west right to where I live.

Q. Ferry street is sloping, isn’t it, from Broad street toward the

river ?

A. Yes, sir.

Q. And the grade is downward, or there is no grade; it is down-

ward in front of your premises?

A. Yes, sir.

Q. And this change of grade on Lamberton, approaching the

bridge, made such a change on Ferry street that there was a slight

hill descending from Lamberton street towards your premises?

A. Yes, sir.

Q. And which, of course, would cause the surface water to accu-

mulate in front of your premises ?

A. Yes, sir.

Q. To carry off which there was a trunk across Lamberton ?

34 A. Yes, sir.

Q. The iron pipe was laid before the dirt was thrown there ?

A. Yes, sir.

Q. What portion of this work of which the change of grade in

Ferry street is part, was done first, do you remember ?

A. What is that?

(The stenographer being requested, read the previous question, as

follows:) “ What portion of this work of which the change of grade

in Ferry street is part, was done first, do you remember ? ”

A. The change of the grade, 1 think, was commenced from the

bridge downwards; [ did not pay much attention to itat that time;

not particularly what they were working at.

Q. At what stage of the work—the entire work now—did you

remonstrate concerning the change to be made?

A. I remonstrated all along from the very beginning ; I said that

first.

Q. You include in that sort of remonstrance your appearance

before common council ?

A. Yes, sir; and that and subsequent with Mr. Bowles, and

during the whole time when they commence! and put their pipe in

there; I objected, too, when they commenced to raise the sidewalk ;

I objected worse by throwing water.

-

THE INHABITANTS OF THE CITY OF TRENTON.

Q. They objected too in the shape of notice not to disturb any

portion of your property ?

A. My objection was till they compensate me for these damages.

Q. Were you iv your premises when the water was thrown upon

the workmen ?

A. I was arrested, when I came back the water was throwing.

Q. Was there any water-throwing before you were arrested ?

A. No, sir.

Q. Were you in andabout the premises before you were arrested ;

inside I mean?

35 A. I know there was no water thrown before I was ar-

rested.

Q. How do you know?

A. I was there; I would see it for I was there.

Q. Didn’t you assist actively in the accumulation of water in the

second floor?

A. If I did : wouldn’t deny it, for I saw it thrown and I was

satisfied to have it thrown, too.

Q. Didn’t you ask or direct it to be thrown; didn’t you know

preparations were being made to throw it?

A. 1 did not; the water was so throwing when [ came back; I

never knew there was any contemplation of throwing water.

Q. Didn’t you threaten them, saying water would be thrown if

they attempted it?

A. I did not.

Q. Didn’t you threaten bodily harm to the workmen if they at-

tempted any change to the work?

A. I didn’t attempt any bodily barm.

Q. Did you say you would use physical force?

A. I could not use much.

Q. Didn’t you threaten to?

A. I don’t say I didn’t; I might; I do not know hardly.

Q. Did you at any time agree to take a certain sum of money in

the way of damages or compensation for the change of grade?

(Objected to.)

By the Court: He already has said that he told them that he

would take 33,000.

By Mr. Retistas: I think I have a right to go into that

subject.

By the Courr: I do not think so if in the way of a com-

promise.

By Mr. Retrstas: The object of my question is not to bring out

anything that would show a compromise.

A. The city of Trenton never offered me $1.

36 By Mr. Lannina: It is very evident, I submit, that what-

ever conversation may have beey had with Mr. McQuade

must-have been by way of compromise, and could not have been

anything else; in addition to that it would be dealing in matters

relating to real estate which must be in writing.

28 JOHN MCQUADE Vs.

By Mr. RetistaB: Ido not think that is required ; I do not know

as it is material, but I think if we could show that an actual sum

had been agreed upon between Mr. McQuade and the agents of the

Pennsylvania railroad

Witness: You can’t show that.

By Mr. Retistas: And acted upon the faith of such an agree-

ment, the work so progressing that it would be material.

By the Court: If you can show anything that amounts to a con-

sent upon his part you may show that.

By Mr. Lannixe: Then we will object to the question on the

ground that it is not cross- -examination, and the counsel must be

bound by the answer.

By Mr. Revistas: They have opened the subject of compensa-

tion in the demand by him for $3,000.

By the Court: I should allow it upon the ground that the ex-

amination so far has proceeded upon the idea that he objected and

resisted because there was no agreement whatsoever. ‘The ground

of his resistance was total want of arrangement between himself and

the city or himself and the company. Tle objected all thetime. If

there is anything that shows a consent, whether by way of agree-

ment for money or any other arrangement, anything that shows a

consent upon the part of this witness, the defendant, to the com-

pany’s proposal, that may be shown.

37 By Mr. Retrisrap: You have testified that you know Mr.

Bowles, engineer for the railroad company ?

A. Yes, sir.

Q. Do you know Joseph R. Gilkyson ?

A. I do.

Q. Did you have any conversation with ha in reference to com-

pensation paid to you ? ? .

A. For what?

Q. For the damage you may sustain; for where the grade is

changed to now.

A. This particular change of grade?

Q. I mean this particular one.

A. [| want to know what one,

Q. The change of grade contemplated by this ordinance and

which raises a portion of the grade in front of your premises as it

is now made.

A. We never had an agreement as it is now.

Q. Did you ever have any talk with him in reference to the

amount you would be satistied with ?

A. With whom ?

Q. Mr. Gilkyson.

A. No; not where it is now.

Q. Not where the grade is now; this grade as you speak of, it

now is the only change of grade that has been made in front of your

premises, is it not?

A. It is the only one, that is, now; they shortened it by resSlution

21 feet.

THE INHABITANTS OF THE CITY OF TRENTON.

Q. I do not know anything about that; when was this conversa-

tion, if you remember ?

A. Never was any.

Q. Never was any”

A. Not where it is now.

Q. Did you never agree that that work should be done and that

you would accept as compensation for all damages that you might

sustain by reason thereof the sum of $250?

A. No, sir.

(Objected to on the ground that it partakes of the nature of a com-

promise, and on the ground that it is illegal under the statute of

frauds, not being in writing.)

38 By the Courr: I will allow these questions upon the idea

that he never went on and finished it.

Q. Did this work under this arrangement

By Mr. Lannine: Do I understand the objection is overruled?

By the Court: The objection is overruled.

By Mr. Recisras: Did you ever agree with Mr. Gilkyson to accept

$250 as your damages or compensation for any change of grade at

or about your premises ?

By Mr. LanninG: This question is objected to for the same rea-

sons already given.

(Objection overruled.)

By the Court: Let the witness answer.

Question repeated.

A. At the time I drove them off from where they came to put it

in where it is now at the present time, I said it would bar my prop-

erty of light and air, and if they would shorten the grade I would

take less; I suppose they asked me what I wanted; they said it was

hard to deal with me, and Mr. Bowles had to get Mr. Mitz and Mr.

Crulp to come down to look at the place; I do not know whether

Mr. Gilkyson was there at the time; I think he was and we agreed

to shorten the grade 21 feet and they asked me what I wanted; I

said I didn’t know, I said I think $500 and they said Give him $300,

and we talked along and I said All right, come ahead.

Q. Come ahead at what figure ?

A. Something about that $200 or $300; [ don’t know what, in

fact I disallowed it; they passed that night, | think, a resolution to

shorten that grade 21 feet, and after that they commenced to take

the pipes up and have them laid where I was across the street, and

afterwards commence- to build an inlet at this grade; I went to

Mr. Bowles and I said, This of course is by resolution and

39 not legal, if you put that in there vou are destroying my

view on this street by reason of it; [am advised that this

inlet, the opinions of reputable physicians that lives in the neigh-

borhood have told me, Dr. Mackenzie and Gallagher, told me it is

unhealthy ; it was put in about one-half on me and half on Mr.

Goff; I said If you put that in there I will require as much as Mr.

30 JOHN MCQUADE Vs.

Goff does, it was on both, or I will take $100 less thai: he will; he

said Why do you ask that now; I said I do not want to be fighting

all the time and you must not trouble and anne y us, and I said If

you will agree to give me that I will allow you to go in there; he

said he though- he would not do it; I said If you do not you can

pay it in future time; I said You can pay us here for $3,000; he put

it in the short grade at any rate; this was in 1891 when I[ am talk-

ing about.

Q. You are giving before the seventeenth of June?

A. About November; I think it was in 1891; on the thirtieth of

April, 1892, I met Mr. Bowles and I asked him what he was going

to do now about this, finishing up the street; What are you going

to do, he said, about it, What are you going to do about it, I said; I

said I am going to take it out if you do not pay for it; he said Don’t

touch it; this was the thirtieth of April, and I think on the fourth

of May, a few days afterwards, I took it out from where it was put

in by resolution, and it remained out until the seventh of May, when

it was so shortened, and they put it back and extended the grade

again.

By Mr. Wooprurr: Didn’t put it back in the same place?

A. Where they were originally put.

By Mr. Retistas: Then it was not in reference to the change of

grade authorized by the ordinance that you offered to take $250 ?

A. No, sir; it was only with a viewof shortening the grade and

bringing the commencement of the grade at the west end of the

property.

Q. Where is it the present commences?

40 A. At the east end; that is right.

By Mr. Wooprurr: And that would effect your property

hardly any?

A. Hardly any, or very little, except the inlet aud bad odor, and

in the summer season particularly, when the water stagnates in what

they call the check-basin.

4 Shortened by resolution and not by sas caaadl ?

. Yes, sir.

By Mr. Lannie: By consent of counsel, we offer in evidence a

couple of maps showing the grades of Ferry and Lamberton streets,

in the immediate vicinity of this bridge and of Mr. MeQuade’s prop-

erty. They are admitted without formal proof that they are copies

of the city records, and are marked Exhibit M1 and Exhibit M2.

Joun Brovuau, called by Mr. Lanning, after being duly sworn,

testified as follows:

Examined by Mr. LANNING:

Q. Where Go you live?

A. I live next door to Mr. McQuade, below him, on Ferry street ;

above him now.

Q. Do you know anything about the condition of the sidewalk in

front of his house?

m

THE INHABITANTS OF THE CITY OF TRENTON.

A. I know it was in a pretty bad condition for over a year.

Q. Do you remember the occasion when the sidewalk, bricks and

flagging were taken up, on the original sidewalk ?

A. I do, sir.

Q. Do you remember the occasion when the sidewalk was relaid

on the sidewalk after the alteration of some of the grade?

A. As soon as they eommenced—I am no man for law, so I

walked away, and was away pretty much all the afternoon.

Q. Has the flagstone been relaid ?

Al A. Yes, sir; the flagstone was relaid that day just as I

came home at night.

Q. Since the grade has been changed, and since the bricks were

originally taken up, have they ever been relaid ?

A. No, sir; there has been no bricks relaid; there has been no

bricks put down.

No cross-examination.

By Mr. Rettsras: I rely entirely upon your honor’s opinion. I

see no reason why there should be a change.

Conclusions.

(Filed March 26, 1895.)

Mr. R. S. Woodruff and Mr. W. M. Lanning for the complainant.

Mr. John Rellstab for the defendant.

On final hearing.

Birp, V. C.:

The preliminary injunction in this case was advised, not because

there was any question as to the legai rights of any of the parties

in interest, but because those rights being conceded, the defendant

thought proper instead of pursuing his legal remedies to recover

compensation for the damages which he had sustained, or would

sustain, by reason of the change of grade in the street and sidewalk,

he persisted in taking the law in his own hands and bidding defi-

ance to the city authorities. Tie city being liable to any of its citi-

zens for damages sustained because of the want of repaired streets,

and having undertaken to repair the streets according to the grade

which had been prescribed as it lawfully might, and the de-

42 fendant with force and violence, interfering therewith and

destroying such improvements or repairs from time to time,

with repeated threats that he would continue such destruction, it

appeared that such conditions were presented as justified the court

in requiring bim to desist from such destruction and interference.

It seemed in such case as though the arm of the law would be

wholly ineflicient without the aid of equity. A single violent or

illegal act may be corrected by an action at law, and so may a

score, but when a multiplicity of illegal acts are threatened, it is to

the interests of the public that equity should interfere in the be-

ginning.

82 JOHN MCQUADE Vs.

In this case it was not the duty of McQuade to make the change

of grade, for the city had entered into an agreement with the com-

pany by which the company was to pay for all the expenses incurred

in making such change. “The city was proveeding to make such

change. Consequently, McQuade was liable to no penalties, as his

counsel has insisted, fur lack of repairs or improvements in the

street. It is plain, therefore, that the legal rights of McQuade could

not be established by the city attempting to enforce any claim

against him for want of repair of the streets or sidewalks adjacent to

his premises. Such action or proceedings would not determine the

damages which he had sustained or might sustain by reason of the

change of grade.

Independently of the interference of the city authorities and what

seems to be on their part the exercise of a legal right, the only ques-

tion that can be litigated is the question between McQuade and the

city with respect to the damages which he is entitled to. These

damages he might have had ascertained before the company or the

city took any steps whatever. But he allowed the company to go

on and make all the changes necessary to the completion of the un-

dertaking which had been consented to by the city, without taking

direct proceedings to compel them to ascertain his damages and to

compensate him therefor. But this inaction upon his part has not

worked a forfeiture of his rights nor relieved the parties from

43 their liability. As wassaid when the preliminary injunction

was advised, he has au ample remedy for a complete redress

of all his grievances without interfering with the rights of the public

at large, to the use of the street in front of his dwelling in a com-

plete condition of repair. ‘The cases referred to in the conclusions

expressed when I granted the preliminary injunctions seems to me

to sustain the views which have controlled me. See also Reed v.

Camden, 24 Vroom, 322. I will advise that the injunction be made

perpetual with costs.

Final Decree.

(Filed April 12, 1895.)

This cause coming on to be heard at the last regular term of the

court of chancery, held at the state-house, in the city of Trenton,

in the presence of Johu Rellstab, of counsel with the complainant,

aud Robert 8. Woodruff and William M. Lanning, of counsel with

the defendant, and the pleadings and proofs having been read, and

the arguments of the respective counsei having been heard and

considered, and the court having duly considered the said pleadings,

proofs ahd arguments, and it appearing to the court that the com-

plainant is entitled to the relief sought and prayed for by kim in

his bill of complaint, and that the preliminary injunction heretofore

granted in this cause should be made perpetual: It is, ou this ninth

day of April, one thousand eight hundred and ninety-five, by

Alexander T. McGill, chancellor of the State of New Jersey, ordered,

adjudged and decreed, and the said chancellor, by virtue of the

power and authority of this court, doth hereby order, adjudge and

alte

THE INHABITANTS OF THE CITY OF TRENTON, 33

decree that the defendant be perpetually enjoined and ref-rained not

only from further interfering with the laying and completion of the

sidewalk and curbing mentioned in the bill of complaint but

44 also from in any manner removing, disturbing or interfering

with the said pavement, sidewalk or curbing after the same

shall have been completed, and that a writ of injunction issue ac-

cordingly.

' And it is further ordered and decreed that the defendants pay to

the complainant the costs of this suit to be taxed, and that execu-

tion issue therefor according to the practice of this court.

ALEX. T. McGILL, C.

Respectfully advised.

JOHN T. BIRD, V. C.

A true copy.

ALLAN McDERMOTT, Clerk.

Fetition of Appeal.

New Jersey Court of Errors and Appeals.

JoHn McQuape, Appellant, }

and On Appeal. Peti-

Tue INHABITANTS OF THE City oF TRENTON, { tion of Appeal.

Respondents.

To the honorable the court of errors and appeals in the last resort

in all causes:

The petition of John McQuade, the appellant in the above-stated

cause, respectfully shows that your petitiouer finds himself aggrieved

by a final decree made in the court of chancery by his honor

Alexander T. McGill, chancellor of the State of New Jersey, bear-

ing date the ninth day of April, in the year eighteen hun-

45 dred and ninety-five, ina cause wherein The Inhabitants of the

City of Trenton were complainants and your petitioner, the

said John McQuade, was defendant, in this respect, to wit: that the

said decree adjudged that your petitioner, the said John McQuade,

be perpetually enjoined and restrained not only from further inter-

fering with the laying and completion of the sidewalk and curbing

mentioned in the bill of complaint in this cause, but also from in

any manner removing, disturbing or interfering with the said pave-

ment, sidewalk or curbing after the same shall have been completed,

and that a writ of injunction should issue accordingly. And your

petitioner humbly appeals from the whole aud every part of said

final decree, which decrees as aforesaid upon the ground that the

same is erroneous, in the following respects, to wit:

(1.) Because by said decree the complainants in said cause will be

permitted to take the private property of your petitioner for public

use, Without compensation required to be made under the provis-

ions of the constitution.

(2.) Because by said decree the Pennsylvania Railroad Company

will be permitted to take the private property of your petitioner for

5—399

34 JOHN MCQUADE Vs.

public use, without the compensation required to be made under the

provisions of the constitution.

(3.) Because by the said decree the property of your petitioner

will be damaged, without just compensation made for such damage

to your petitioner.

(4.) Because the right to take or injure your petitioner’s property

in the manner set forth in the pleadings and proofs in this cause had

not been acquired, either by the complainant, The Inhabitants of

the City of Trenton, or by the Pennsylvania Railroad Company, by

the exercise of the power of eminent domain or otherwise.

(5.) Because no procedure for taking or injuring your petitioner's

property in the manner set forth in the pleadings and proofs in this

cause has been at any time prescribed or enacted by the legislature.

(6.) Because the pleadings and proofs show that your peti-

46 tioner’s property is sought to be taken for public use by the

Pennsylvania Railroad Company without just compensation

first made to your petitioner.

(7.) Because the pleadings and proofs show that the respondents

are not without a remedy at law, and that the decree is but an at-

tempt to enforce a city ordinance for which there is a legal remedy.

(8.) Because the said decree is in sundry other respects contrary

to the Constitution of the United States and to the law of the land.

Your petitioner therefore prays that the said decree of the said

chancellor may be in all respects reversed, set aside and for nothing

holden, and that your petitioner may have such relief in the prem-

ises as to this honorable court shall seem meet.

ROBT 8. WOODRUFF, Jr.,

Solicitor and of Counsel with Appellant.

Filed April 25, 1895.

HENRY C. KELSEY, Clerk.

A true copy.

Answer to Petition of Appeal.

The auswer of the above-named respondents to the petition of

appeal of the above-named appellant.

‘These respondents, not acknowledging all or any of the matters

which in said petition of appeal are contained to be true, for answer

thereto, nevertheless, says and admits that a decree was, on the ninth

day of April last past, made and entered in the court of chancery

as in said petition stated; but as to the substance and form thereof

these respondents pray leave to refer thereto when the same shall

be produced. And these respondents are advised and believe it to

be true that said decree is agreeable to equity, and they pray that the

same may be confirmed with costs to be adjudged to these re-

spondents.

Solt. and Counsel with Defendants.

THE INHABITANTS OF THE CITY OF TRENTON.

47 New Jersey Court of Errors & Appeals, November Term,

1895.

Between—

Joun McQuaps, Appellant, |

and | nor

THE INHABITANTS OF THE City oF “On Appeal. Remittitur.

TRENTON, Respondents. J

This cause having been brought to a hearing on an appeal from

the court of chancery at the present term of this court, and William

M. Lanning, Esq., and kK. 8. Woodruff, Jr., Esq., of counsel with the

appellant, and John Reilstab, of counsel with the respondents, having

been heard, and the questions brought up by said appeal having

been duly considered, it is on this twenty-first day of November,

A.D. eighteen hundred and ninety-five, ordered, adjudged, and de-

creed that the decree of the court of chancery, made on the ninth

day of April, eighteen hundred and ninety-five, which is appealed

from by the appellant, be, and the same is hereby, in all things

affirmed, with costs in this court and in the court of chancery to be

paid by the appellant, and that the petition of appeal be dismissed ;

and it is further ordered that the record be remitted to the court of

chaucery to proceed further thereon according to law and the prac-

tice of said court.

On motion of—

JOHN RELLSTAB,

Solicitor & Counsel of Respondents.

[Endorsed :] New Jersey court of errors and appeals, November

term, 1895. Between John McQuade, appellant, and The Inhabit-

ants of the City of Trenton, respondents. On appeal. Remittitur.

John Rellstab, sol’r of respondents. “ Filed Nov. 30, 1895, as of

Nov. 21, 1895. Henry C. Kelsey, clerk.”

48 Srare or New Jersey,

[ Vignette. |

DEPARTMENT OF STATE.

I, George Wurts, secretary of state of the State of New Jersey and

ex officio clerk of the court of errors and appeals in the last resort

in all causes in and for the State of New Jersey, do hereby certify

that the foregoing is a full, true, and complete copy of the record in

the case of John McQuade, appellant, and The Inhabitants of the

City of Trenton, respondents, on appeal from the court of chancery,

and of the “ petition of appeal,” “answer to petition of appeal,” and

the “ final decree and remittitur” of the said court and all proceed-

ings in the cause, as the same remains on file and of record in my

office.

JOHN MCQUADE VS.

In testimony whereof I have here-

Seal of the Secretary of the unto set my hand and affixed the

State of New Jersey. official seal of said court this the fifth

day of June, A. D. 1897.

GEORGE WURTS,

Secretary of State and ex Officio Clerk of the

Jourt of Errors and Appeals.

49 Know all men by these presents that we, John McQuade,

of Trenton, New Jersey, as principal, and John Keily and

James West, both of Trenton, New Jersey, as sureties, are held and

firmly bound unto The Inhabitants of the City of Trenton in the

full and just sum of one thousand ,2, ($1,000) dollars, to be paid to

the said The Inhabitants of the City of Trenton, its certain attorney,

successors, legal representatives, or assigns; to which payment,

well and truly to be made, we bind ourselves, our heirs, executors,

and administrators, jointly and severally, by these presents.

Sealed with our seals and dated this 17th day of May, in the year

of our Lord one thousand eight hundred and ninety-seven.

Whereas lately, at a term of the court of errors and appeais in

the last resort in all causes of the State of New Jersey, in a suit de-

pending in said court between John McQuade, appellant, and The

Inhabitants of the City of Trenton, respondents, a judgment or

decree was rendered against the said John McQuade, and the said

John McQuade having obtained a writ of error and filed a copy

thereof in the clerk’s office of the said court to reverse the said judg-

ment or decree in the aforesaid suit, and a citation directed to the

said The Inhabitants of the City of Trenton, citing and admonish-

ing them to be and appear at a Supreme Court of the United States,

at Washington, within 30 days from the date thereof:

Now, the condition of the above obligation is such that if the said

Johu McQuade shall prosecute his writ to effect and answer all costs

if he fail to make his plea good, then the above obligation to be

void; else to remain in full force and virtue.

JOHN McQUADE. [sEAL.

JOHN KELLY. SEAL.

JAMES WEST. SEAL.

JAMES WEST. SEAL.

Sealed and delivered in presence of—

JOHN DUNPHY.

JOHN DUNPHY.

JOHN DUNPHY.

Approved by—

GEORGE SHIRAS, Jr.,

Assistant Justice of the Supreme Court

of the United States.

50 I herewith acknowledge service of the within bond this

fourteenth day of June, A. D. 1897.

WELLING G. SICKEL,

Mayor City of Trenton, N. J.

THE INHABITANTS OF THE CITY OF TRENTON. ‘

51 Unitep States oF AMERICA, 88:

To The Inhabitants of the City of Trenton, Greeting:

You are hereby cited and admonished to be and appear at a Su-

preme Court of the United States, at Washington, within 30 days

from the date hereof, pursuant to a writ of error filed in the clerk’s

office of the court of errors and appeals of the State of New Jersey,

wherein John McQuade is plaintiff in error and you are defendants

in error, to show cause, if any there be, why the judgment rendered

against the said plaintiff in error, as in the said writ of error men-

tioned, should not be corrected and why speedy justice should not

be done to the parties in that behalf.

Witness the Honorable George Shiras, Jr., associate justice of the

Supreme Court of the United States, this 22d day of May, in the vear

of our Lord one thousand eight hundred and ninety-seven.

GEORGE SHIRAS, Jr.,

Associate Justice of the Supreme Court of the United States.

52 STaTE OF New YorK, ee

City & County of New York, {°°

On this 7th day of June, in the year of our Lord one thousand

eight hundred and ninety-seven, personally appeared Edward C.

Wagner before me, the subscriber, a notary public, and makes oath

that he delivered a true copy of the within citation to The Inhab-

itants of the City of Trenton by delivering the same to Welling G.

Sickel, the mayor of the city of Trenton, New Jersey, at said city,

on the third day of June, 1897.

EDWARD C. WAGNER.

Sworn to and subscribed the 7th day of June, A. D. 1897.

{Seal of John McClure, Notary Public, New York.]

JOHN McCLURE,

Notary Public, N. Y. Co.

Endorsed on cover: Case No. 16,612. New Jersey court of errors

and appeals. Term No., 399. John McQuade, plaintiff in error, vs.

The Inhabitants of the City of Trenton. Filed June 17th, 1897.