Opinion
11-10-1904
UNITED NEW JERSEY R. & CANAL CO. et al. v. McCULLEY.
Alan H. Strong, for complainants. George T. Parrot and Joseph Cross, for defendant.
Suit by the United New Jersey Railroad & Canal Company and others against William McCulley to enjoin an action at law. Defendant demurs to the complaint. Demurrer sustained.
Alan H. Strong, for complainants.
George T. Parrot and Joseph Cross, for defendant.
BERGEN, V. C. This case is similar to that considered and determined in a cause between the same complainants and Francis Lewis et al., in which I have just filed my conclusions. 59 Atl. 227. As the reasons given for the result in that cause are, in the main, applicable to this case, I refer to and adopt them as a justification for the conclusion reached here. The only difference in the cause is that in the Lewis Case the lauds alleged to be injured were improved, having on them a dwelling house, while here the lot was without any buildings. It is contended on behalf of the complainants that the right to damages for changing the grade of a street is limited, as to the city of Elizabeth, to lots having buildings on them, and that no legal injury is sustained, whatever may be the change of grade, if the lot be vacant. It is not necessary to consider this proposition, for, if the complainants are right, they have a perfect defense at law for any lawful act done as the agent of the city. That under the contract by virtue of which the work was done they were the employés of the city was settled in Clark v. Elizabeth, 61 N. J. Law, 565, 577, 40 Atl. 616, 737.
The demurrer should be sustained.