84 N.J. Eq. 618 | New York Court of Chancery | 1915
On June 21st, 1909, complainant, a trolley company, was engaged in operating its line of electric railway on a highway, in Atlantic county, known as the Shore Road, under proper authority for that purpose. On that date it entered into an
At the completion of the pavement an action at law was brought by defendant against complainant to recover the one-third of the cost of the pavement. The present bill is filed by complainant to enjoin the further prosecution of the action at law and to compel defendant to relay such parts of the pavement as is not constructed in conformity to the contract.
It seems clear that this contract, though meagre in its terms, imposed upon defendant the duty to supply a pavement of the general nature described and at the grade thereafter established, and entitled complainant to the enjoyment of such a pavement at the grade so established.
It is clear from- the evidence that a considerable of the pavement as completed was not at the established grade; it is also reasonably clear that complainant' is injured thereby. At many places where complainant’s tracks are at grade the surface level-
It is impossible to say that these several claims on the part of complainant are without some merit. The trolley road of complainant was reconstructed, by pre-arrangement, in advance of the pavement construction. The grade of the trolley road was established with reference to tacks placed in poles near the sides of the highway by the agency of defendant for that purpose, and the tracks were laid in reasonable conformity to that grade. The paving was laid with reference to the tracks and upon the assumption that the tracks were at grade and with a purpose of conforming the finished surface of the paving adjacent to the tracks to the level of the tracks, and sloping the surface of the paving from the tracks to the curbs. But, through inaccuracy of construction, the surface of tire finished pavement in many places did not conform to the level of the tracks, and in many places did not slope away from the tracks as it should have done. That some injury from this inaccurate construction flows to complainant I am unable to doubt.
But I have been unable to reach the conclusion that complainant’s appropriate remedy is either by injunction against the trial of the pending actions at law which have been brought for
The former remedy would be operative to deny defendant the money they seek until the pavement should be relaid in accordance with the contract; the latter remedy, either alone or in connection with the former remedy, would be enforceable only by proceedings for contempt; and the two remedies alike involve the ascertainment by this court whether the pavement, if relaid, has been made to meet the requirements of the contract. This latter duty this court cannot appropriately assume in this case; it involves in its ultimate determination, not only an ascertainment by this court of the various parts of the work which require reconstruction or alteration, but also involves the continuous supervision of the court over every detail of all reconstruction work and includes in all matters and at all times the exercise of a directing judgment of the court in features of road construction work both practical and technical.
As already pointed out, the contract between tire trolley company and the county only provides that the county will cause the pavement to be laid and will establish a grade to which all parties must conform, and that the trolley company shall recompense the county by paying to the county one-third of the total cost of the paving work. The trolley company is not a party to the contract between the county and the road construction contractor; but as the trolley company under its contract with the county is to pay one-third of the cost of construction, that contract must be understood to contemplate not only the execution of an honest paving contract between the county and its contractor, but also the construction of a pavement in accordance with that contract; it necessarily follows that when the trolley company is called upon to pay its one-third of the costs of construction under the latter contract, to which it was not a direct party, it is privileged to inquire whether the work called for by that contract, for which the payment is desired, has been done, and that inquiry necessarily includes an investigation touching every essential detail of the work with reference to that contract.
When this suit came on for final hearing the court indulged the sanguine view that it could be easily ascertained whether there had been a substantial compliance with the requirements of the contract. Over two thousand two hundred typewritten pages of testimony have been taken, devoted almost exclusively to matters of levels, details of construction and opinions of experts in road construction touching technical matters. In. all these matters the testimony is in radical conflict. The engineers even disagree in running levels at given points from the road side to its centre, and also in ascertaining whether drainage at given points is from the tracks to the curb. Touching what constitutes a substantial compliance with contract grade requirements in contracts of this nature, the expert witnesses also radically differ; some testify that no variations from grade exceeding one-fourth of an inch are allowed in road work of this kind, others are equally positive that one-inch variation is allowable — that is, one inch above and one inch below the grade called for. It is thus manifest that any decree calling for reconstruction will necessarily involve the court in a degree of supervision, direction and final judgment in matters alike, practical and technical, which cannot be properly assumed.
Any attempted review of tire authorities touching the jurisdiction of a court of equity in cases of this nature would add little if anything to the literature of the subject. Every text-writer
Perhaps there should be added to the exceptions above noted a somewhat recent line of eases for the enforcement of trackage and operating contracts between railroads. See 6 Pom. Eq. Jur. (2 Pom. Rem.) § 761. In an able and exhaustive note on the general subject by Mr. Freeman, appended to Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, as contained in 68 Am. St. Rep. 753, he says: “While equity aims to supply a
I will advise a decree denying the relief sought.