Summary
In Doremus v. Paterson, 70 N. J. Eq. 296, 62 Atl. 3, Vice Chancellor Stevens, quoting from the case of Stonemetz Printers Co. v. Brown Co. (C. C.) 46 Fed. 851, says concerning the use of a cross-bill: "It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original independent suit.
Summary of this case from Bacharach v. BartlettOpinion
10-30-1905
DOREMUS et al. v. MAYOR ETC., OF PATER SON et al.
Sherrerd Depue, for complainants. George S. Hilton, for defendant.
Bill by Henry W. Doremus and others against the mayor and alderman of the city of Paterson and others. On application to strike defendant's cross-bill. Granted.
See 52 Atl. 1107; 55 Atl. 304; 57 Atl. 548; 61 Atl. 396.
Sherrerd Depue, for complainants. George S. Hilton, for defendant.
STEVENS, V. C. This is an application to strike out a cross-bill under rule 213. A cross-bill is a bill brought by the defendant against the plaintiff (and, if necessary, other parties) in another suit touching the same matter. Dan. Ch. Pr. (6th Am. Ed.) 1548. It is brought either (1) to obtain a discovery of facts in aid of the defense to the original bill or (2) "to obtain full relief to all parties touching the matters of the original bill." Story, Eq. Pl. § 389. "It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. * * * If its purpose be different from this, it is not a cross-bill, though it may have a connection with the said general subject." Stonemetz Printers' Co. v. Brown & Co. (C. C.) 46 Fed. 851. "The new facts which it is proper for a defendant to introduce into a pending litigation by means of a cross-bill are such, and such only, as it is necessary for the court to have before it in deciding the question raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which complainant rests his right to aid or relief. If a defendant, in filing a cross-bill, attempts to go beyond this and to introduce new and distinct matter, not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against either the complainant or one or more of his codefendants, his pleading will not be a cross-bill, but an original bill." Krueger v. Ferry, 41 N. J. Eq. 436, 5 Atl. 452; Id., 43 N. J. Eq. 295, 14 Atl. 811.
Judged by these rules, the cross-bill filed in the present case cannot be sustained. The original bill is, in the language of theCourt of Errors and Appeals (Doremus v. Paterson, 61 Atl. 396), "a bill to restrain the further pollution of the river," but "it tenders to the city the opportunity of avoiding the issuance of the writ by making compensation to the complainant for the injury which will accrue to their property by the continued discharge of sewage into the stream." It is, in other words, an injunction bill to restrain a nuisance. The cross-bill admits the nuisance, but it avers (1) that the East Jersey Water Company has unlawfully diverted, for the benefit of the city of Newark, water which would otherwise have flowed past Paterson and helped to dilute its sewage; (2) that the Dundee Water Company has constructed a dam across the Passaic river below Paterson, and has by so doing formed Dundee Lake, with the effect of rendering its current more sluggish, and so retarding or preventing the passage of the sewage down the stream. It seeks, on the authority of Green v. Stone, 54 N. J. Eq. 387, 34 Atl. 1099, 55 Am. St. Rep. 577, to make the East Jersey Water Company, the city of Newark, and the Dundee Company parties. The attempt is based upon a misconception of the rule in that case. Its effect would be to involve the complainants in three distinct controversies with which they have absolutely no concern: (1) Whether, as against Paterson, the East Jersey Water Company may take the upper waters of the Passaic for the purpose of supplying the inhabitants of Essex and Hudson counties with pure water. (2) Whether, as against Paterson, Newark is illegally appropriating the waters of the Pequannock. (3) Whether, as against Paterson, the Dundee dam is an illegal structure. Not only would the cross-bill, if sustained, compel the complainant to litigate these distinct questions in one suit, but it would involve the city of Newark in a controversy over the Dundee dam, a question with which it has no concern; and it would involve the Dundee Company in a controversy respecting the use by Newark of the waters of the Pequannock, a question utterly distinct from the question whether the dam is a lawful structure. If Paterson had filed an original bill against these parties, it would have been demurrable on the ground of multifariousness and misjoinder. This cross-bill, original, certainly, as to the new parties brought in, is equally so. It would, if permitted to stand, subject complainants to an interminable litigation over questions with which they have no concern, and would amount to a practical denial of justice. If proved it would be no answer to the charge of nuisance. The defense, if such it can be called, would seem, also, to be obnoxious to the well-settled rule that, as between independent wrongdoers, there is no contribution. I think that the bill should be striken out.
The city of Paterson has with its cross-bill filed an answer, and the complainants apply to strike out portions of it for insufficiency. I understand that the first objection, viz., that the defendant does not elect whether it will submit to an injunction or make compensation, is admitted to be well taken, and that the answer will be amended in that particular.
The second objection is that the answer does not declare whether the taking of the complainants' property rights is to be perpetual, or only temporary; and the third objection is that, if the answer is to be construed as declaring that the taking is to be temporary, then it does not declare for what period of time the taking is to continue. I think these objections are valid. The complainants, in their bill, state their damages "calculated upon the basis of said injuries being permanent" This statement necessitates a counter statement by Paterson of whether it intends for an indefinite time in the future to pollute the waters of the Passaic, or whether it intends to stop polluting them within a definite period. If it intends to stop, it should so aver, and it should designate a time beyond which the pollution will cease. Thus only can the complainants' damages be definitely ascertained, if the injury is to be computed on this basis. It is self-evident that, if the nuisance is to come to an end in 5 or 10 years, the damages given will be less than they would be if the nuisance is to last for 50 or 100 years. Only by naming a definite time is it possible to compute them on any other theory than that of a permanent injury, and it is only fair to complainants that they should be informed before trial what Paterson's position is on this very important question.
The last objection is too indefinite to merit attention. Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Doane v. Lumber Co., 59 N. J. Eq. 142, 45 Atl. 537.