Brisbane v. Sullivan, s. 71, 72.

• Decision Date: 18 May 1931
• Docket Number: Nos. 71, 72.,s. 71, 72.
• Citation: 154 A. 746
• Parties: BRISBANE v. SULLIVAN et al. In re MAYOR AND ALDERMEN OF JERSEY CITY.
• Court: New Jersey Supreme Court

154 A. 746

BRISBANE

v. SULLIVAN et al.

In re MAYOR AND ALDERMEN OF JERSEY CITY.

Nos. 71, 72.

Court of Errors and Appeals of New Jersey.

May 18, 1931.

Appeal from Court of Chancery.

In the matter of the application of the Mayor and Aldermen of Jersey City to acquire certain property for the purpose of widening Bergen avenue, etc., wherein a controversy arose beween Arthur Brisbane and James A. Sullivan and sister, regarding proper distribution of funds paid into court. From the decree, appeals were taken by the Sullivans and one Perkins.

Record remanded, with direction.

Perkins & Drewen, of Jersey City, for appellants.

Robert H. McCarter, Saul Cohn, and Joseph E. Cohn, all of Newark, and Mark A. Sullivan, of Jersey City, for respondents.

LLOYD, J.

The controversy in these cases arises over the proper distribution of the fund paid into the Court of Chancery upon a condemnation of real property by the city of Jersey City.

Several claims were made on the fund, but four of which, however, appear to have been in dispute. The Sullivans, James A. and Ella J. (his sister), claimed the entire fund subject to certain assignments of portions of the same to Randolph Perkins and to Treacy & Milton, and Brisbane claimed to hold the Sullivan interests by assignment of a contract of sale entered into between James A. Sullivan and Bennett Milnor in 1910 by virtue of assignment of that agreement from Milnor. Perkins claimed under assignment from James A. Sullivan, and Grace Kastenhuber and Ruth Youm'an claimed to hold a remainder interest after the death of their mother, Dora Kastenhuber.

The court below, on the advice of a vice chancellor, decreed that the Sullivans had an estate for the lifetime of Dora Kastenhuber, and that this interest had passed by the assignment of the agreement of sale mentioned to Brisbane, and that Brisbane was entitled to the income from the fund until the death of Dora Kastenhuber, subject to the payment by him of such sum as should be found due to Sullivan under the agreement of 1910; that Ruth Youman and Grace Kastenhuber had a vested remainder after the expiration of the life estate; and that the assignment by Sullivan to Perkins was subordinate to the interests of Brisbane, Youman, and Grace Kastenhuber. The court also decreed the payment of a fee of $5,000 out of the fund to the solicitor of the Kastenhuber children, Grace Kastenhuber, and Ruth Youman. The claim of Randolph Perkins as assignee of Sullivan was disallowed. From the decree appeals have been taken by the Sullivans and by Perkins.

First as to the Sullivan appeal: In this appeal it is contended that the court erred in holding that the Sullivans had but an estate for the life of Dora Kastenhuber; in holding that Brisbane was entitled to the income by virtue of the assignment from Sullivan, and in awarding a counsel fee of $5,000 to be paid out of the principal of the fund to counsel for Grace Kastenhuber and Ruth Youman.

Although, as between the Sullivans and Brisbane, the controversy here is over such interest as these contestants may have in the fund, it involves in reality a question of specific performance at the instance of Brisbane of the sale agreement made in 1910, and viewed in this aspect involves a long period of repeated and protracted litigation on the part of Brisbane to enforce some right under this agreement.

The agreement between Sullivan and Milnor was made July 19, 1910, and assigned by Milnor to Brisbane August 24, 1910. The agreement not being performed, Brisbane in February. 1911, filed a bill in chancery for the specific performance of the contract, with abatement of the contract price because of the limited estate (for the life of Dora Kastenhuber) which the grantor could convey. Successful in the court below, the decree in favor of...