Opinion
11-14-1889
EAST NEW BRUNSWICK & N. B. TURNPIKE Co. v. RARITAN RIVER R. CO.
A. R. Strong, for the motion. Wm. D. Edwards, against the motion.
On motion to attach for contempt.
A. R. Strong, for the motion. Wm. D. Edwards, against the motion.
BIRD, V. C. The complainant filed its bill, alleging that the defendant had entered into an agreement to erect a bridge over the defendant's track for the use of the complainant, according to certain specifications, and asking that the defendant should be required to perform such agreement. Such proceedings were had that an order was made directing the defendant specifically to perform its contract. Thereupon the defendant constructed a bridge, but in a few days after its completion there was a heavy rain, and the supports of the bridge gave way, leaving the bridge practically useless as a means of travel. This happened on the 14th of the month. On the 19th of the same month, no steps having been taken by the defendant to rebuild or to make the bridge secure as a means of transit, this petition was filed, in which the complainant charges that the defendant should be punished as for a contempt in not obeying the original order of the court. Two days after the filing of the petition the defendant actively began the work of repairing and rebuilding, so that, when the cause was brought on to be heard upon the present motion, the defendant had in letter and in spirit constructed a bridge according to contract. I find that while the defendant has thus, to a great extent, purged itself of the alleged contempt, yet its conduct and neglect were such as to make it wholly responsible for the present motion. That the first bridge was negligently constructed, and was not in compliance with the contract, are most clearly established by the fact that it so soon gave way, the supports yielding to the flow of water and of earth during a heavy rain, and by the fact, which is perhaps more conclusive, that the new structure much more implicitly accords with the contract, but is altogether differently and more securely supported and protected against the flow of water and earth. The excuse offered for the giving way of the first bridge was the extraordinary rain-storm which prevailed at the time, but this is an entirely insufficient excuse. But, as I have said, the spirit of the contract now having been fulfilled, the court has no desire to punish; yet, since it is clear that the petition was properly filed, nothing less can be done than to require the defendant to pay the costs of this motion.