Loder v. McGovern

• Decision Date: 27 May 1891
• Citation: 22 A. 199,48 N.J.E. 275
• Parties: LODER v. MCGOVERN et al.
• Court: New Jersey Supreme Court

22 A. 199

48 N.J.E. 275

LODER

v. MCGOVERN et al.

Court of Errors and Appeals of New Jersey.

May 27, 1891.

(Syllabus by the Court.)

Appeal from court of chancery; Bird, Vice-Chancellor.

W. M. Lanning,forappellant.

S. Walker, Jr., and G. D. W. Vroom, for respondents.

BEASLEY, C. J. The characteristic facts constituting the basis of this litigation may be expressed in a few words. The city of Trenton entered into a contract with Mr. Loder, who is now the appellant, for the paving by him of the road-bed of one of its streets, the work to be done in a designated manner, and with specified materials. The respondent Mr. McGovern is the owner of a lot abutting on that portion of the street so to be improved, and, by reason of certain provisions in the charter of the city, he will be liable to be assessed for a part of the cost of such paving; and his complaint in his present bill is that this work is being done by the appellant imperfectly, both with respect to materials and skill, in violation of his contract, and that the city unjustly, and to the manifest damage of the complainant, acquiesces in such misconduct, and is ready to pay for the work at the stipulated rate. Upon the assumption that this undertaking is being treated in this objectionable manner it is manifest that the complainant, Mr. McGovern, will sustain a wrong unless he shall have judicial succor, for he will ultimately be compelled to pay for defective and inferior work and materials at the same rate as though they were perfect and superior. For such a wrong there must be a legal remedy of some sort, and it is obvious that in a common-law court such redress cannot be obtained. Before such tribunals the complainant could not in any mode present the question whether this work had been properly done or not, for it has been repeatedly decided by the courts of this state that a land-owner thus situated cannot raise such an issue after such work has been done and its cost has been or is being assessed. Necessarily the citizen thus oppressed has the right to appeal to a court of equity for protection, and consequently the legal authority of Mr. McGovern to file this bill by force of the circumstances narrated must be unquestionable. The principle referred to was declared by Chancellor Zabkiskie over 20 years ago in these words, viz.: "The only remedy in such a case, if the city authorities will not resist the claim, is in equity. If the land-owners stand by and see the city pay the contractor, they can have no relief against the assessment. This was so held by the court of errors in case cited by the counsel of the defendant. State v. Jersey City, 29 N. J. Law, 441. "Equitable jurisdiction was exercised in similar situations in the cases of Bond v. Newark, 19 N. J. Eq. 376; Schumm v. Seymour, 24 N. J. Eq. 144; and in Liebstein v. Newark, Id. 202. But while the standing of the complainant in the tribunal to which he has appealed is not open to doubt, the important question necessarily supervenes as to what is the nature and scope of the relief to which he is entitled. This inquiry, it would seem, will be answered as soon as it shall have been precisely ascertained what is the wrong with which the complainant was and is threatened. Such wrong is plainly manifested on the face of his bill. It is, in a word, this: that the city authorities intend to pay the bill of this contractor at full contract prices, although the work and materials furnished by him are grossly imperfect. That this is the entire content of the complainant's grievance is obvious from the fact that if the municipal authorities had exhibited the opposite purpose, that is, had declared that the contractor was in default, and that they would not pay until the job had been executed according to stipulation, the complainant would have been destitute of all right to intervene in the affair, either at law or in equity. If the cits', in its answer in this case, supported by its proofs, had shown that it intended to contest the contractor's right to these moneys, it appears to be indisputable that such showing would have utterly exploded the entire ground of equitable jurisdiction. In the face of such a demonstration the complainant would have been stripped of every vestige of rightful status in a court of equity, and as a corollary, therefore, it follows that if he shall be protected against a voluntary payment of this money by the city he will receive the complement of relief to which he is entitled. And beyond this bound we think that in this...