Cook v. Weigley

• Decision Date: 27 January 1905
• Citation: 59 A. 1029,68 N.J.E. 480
• Parties: COOK et al. v. WEIGLEY et al.
• Court: New Jersey Court of Chancery

59 A. 1029

68 N.J.E. 480

COOK et al.

v. WEIGLEY et al.

Court of Chancery of New Jersey.

Jan. 27, 1905.

Foreclosure proceedings by Emma W. Cook and others, executors, etc., against William W. Weigley and others. On petition by defendants, attacking the jurisdiction of the court. Petition dismissed.

See 57 Atl. 805.

Vroom, Dickinson & Scammell and Anderson & Anderson, for petitioners.

Frank Durand and W. W. McFarland, for respondents.

BERGEN, V. C. The defendant Weigley, claiming to be the owner of Oyster Island and Robin's Reef, islands surrounded by the waters of Hudson river, mortgaged them to the complainants. Proceedings were instituted in this court for the foreclosure of the mortgage, and answers were interposed by the mortgagor and the International Docks Terminal Railway Company; the latter defendant having purchased a portion of the mortgaged premises, with notice of, and subject to, the mortgage. The foreclosure suit resulted in a decree for the complainants, from which an appeal was taken to the Court of Errors and Appeals, where it was affirmed,¹ and remitted to this court for enforcement. After such affirmance a petition was presented to this court, which, after reciting the foregoing facts, charges that, notwithstanding such decree, a title to the mortgaged premises cannot be had by virtue of the sale directed by said decree, because this court has no authority to order the lands to be sold—the jurisdiction thereof belonging exclusively to the state of New York—and prays that the execution be stayed, that it be declared that this court has no jurisdiction to decree the foreclosure and sale of the mortgaged premises, and that the bill of complaint, with the subsequent proceedings had thereon, be dismissed.

It is sought to support this petition by invoking the aid of article 2 of the act confirming an agreement between the commissioners appointed by the Governors of the states of New York and New Jersey, respectively, for the purpose of settling the jurisdiction and territorial limits of the two states. Act June 28, 1834, c. 126, 4 Stat. 709. The article reads as follows: "The state of New York shall retain its present jurisdiction, of and over Bedlow's and Ellis' Islands, and shall also retain exclusive jurisdiction, of and over the other islands lying in the waters above mentioned, and now under the jurisdiction of that state." The first article of the agreement establishes the boundary line between the two states, and, without doubt, the mortgaged premises lie to the west of that line, and within the territorial limits of this state; but the petitioners urge with great earnestness that the lands are embraced...