(116 A.)

ment, the structure seing a nuisance, and is directed to establishing the fact that in that the prosecutors had not suffered special the opinion of the experts prosecutor will injury. The situation was very different not be injured if, as they say it will, the from that in this case, where it is proposed business of the factory improves because of to require persons wishing to go to prosecu- the increased convenience to the owners of tor's dwelling to walk along sidewalks over it, but this is speculative, and does not overwhich railroad tracks are to be laid and run come the inference of special injury to be trains thereon. In Dufford v. Staats, 54 N. drawn from the proposed obstruction of the J. Law, 286, 23 Atl. 667, Mr. Justice Dixon, sidewalk on the opposite side of the street referring to the Traphagen Case, supra, said north of prosecutor's property, and the runthat the opinion in that case cited certain ning of railroad trains along them when cases with apparent approval, but that they there is a similar obstruction of the sidewalk "should not be deemed so broad as to defeat on the other side of the street. our jurisdiction under present conditions."

(93 N. J. Eq. 303)

Ex parte WELSH. (No. 50/285.) (Court of Chancery of New Jersey. Jan. 20, 1922.)

I. Costs 172-Counsel fees allowable only under statute.

Under the circumstances shown in this The Lehigh Valley Railroad Company pro- case the ordinance consenting to the use of poses to build the proposed road in the street the sidewalks of the city for railroad purunder section 9 of "An act concerning rail- poses, for the expressed reason of affording roads" (C. S. p. 4223), which authorizes any the Standard Underground Cable Co. a such company to construct and operate a cheaper and more convenient method of branch line extending from the main line to transporting its material to and from its fac"any mill, factory, mine, clay bed or ware- tory, is an unreasonable exercise of municihouse," but shall not construct such a branch pal power and should be set aside. in city or town until it obtains the consent The ordinance is set aside, with costs. of the municipal authorities. Therefore the consent in the present case is not ultra vires, as it would furnish a justification for the proposed act of the railroad company. The rule adopted by the Supreme Court in Oliver v. Jersey City, 63 N. J. Law, 96, 42 Atl. 782, which was approved by Court of Errors and Appeals (63 N. J. Law, 634, 44 Atl. 709, 48 L. R. A. 412, 76 Am. St. Rep. 228), although the judgment was reversed for other reasons, is that the applicant for a writ of certiorari must show that he will suffer a special injury, subject to the qualification that, where the ordinance is ultra vires, and will furnish no justification for the act authorized, so that, if executed, it will be a public nuisance, the writ will be denied, not because the prosecutor has no interest, but for the reason that there is another remedy by indictment or civil action. So, if this writ be denied, prosecutor has no remedy, either by indictment for abatement of the nuisance, or civil action for damages resulting therefrom, because the source of the injury exists by statutory authority. I am satisfied that prosecutor is entitled to his writ, and the motion to dismiss it is denied. The case of Seaman v. Perth Amboy, 116 Atl. 174, recently decided, to which defendant refers, is not applicable here, for in that case the consent was ultra vires, because it authorized the building of a railroad by a party not endowed with power, and fell within the exception stated in Oliver v. Jersey City, supra.

[3] Turning to the merits as shown by the testimony, I find as a fact that the proposed occupation of the sidewalk of the street opposite to prosecutor's property for railroad purposes will be a substantial injury to it. The amount is not material unless it be nominal, for if a substantial right is to be invaded the owner is entitled to protection against it. The testimony taken by the defendant

Allowance of counsel fee rests solely on the statutes, except where trust funds in the control of the court are being administered. 2. Costs 173(1)-Counsel fees not allowable to defendant on dismissal by plaintiff.

On a voluntary dismissal by plaintiff, a court of equity cannot allow counsel fees to defendant, either under Chancery Act, § 91, authorizing such allowance to the party obtaining the order or decree, or under P. L. 1915, p. 185, § 6, authorizing the court to charge the successful party with a reasonable counsel fee. 3. Habeas corpus 87-Petitioner for writ to determine custody of children cannot dismiss.

Notwithstanding the general rule that a complainant may dismiss at pleasure before trial on payment of costs, a petitioner for habeas corpus to determine the right to custody of infant children, who are the wards of the court, cannot dismiss his petition and thereby prevent the court from judicially settling the rights to custody.

4. Habeas corpus 87 Cross-petition for custody of children unnecessary to prevent dismissal.

Where a father had invoked the court's ju risdiction to determine the right to custody of minor children by a petition for habeas corpus, to which the mother had filed answer asserting her right to the children and praying for their custody, no cross-petition by the wife was necessary to prevent the husband from voluntarily dismissing his petition.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. Habeas corpus 87-Dismissal refused to nonresident petitioner, who could not be brought within court's jurisdiction.

Where petitioner for habeas corpus to recover custody of his children, who were within the state, was a nonresident of the state, so that he could not be subjected to the jurisdiction of the court in a proceeding to determine the custody of the children, and no decree determining such custody would be conclusive on him outside of the jurisdiction, he will not be permitted, after having submitted to the jurisdiction, to dismiss his petition, and thereby prevent the court from rendering a decree which will be res judicata everywhere.

6. Dismissal and nonsuit 18-Dismissal not granted, when defendant has gained advantage which would be prejudiced thereby.

As a general principle, complainant will not be permitted to dismiss his bill after the defendant has gained an advantage in the progress of the cause which would be prejudiced by a dismissal.

Application of Charles N. Welsh for writ of habeas corpus to recover custody of his infant children, Charles N. Welsh, Jr., and another. Petitioner moved for leave to dismiss. Motion denied.

Pitney, Hardin & Skinner and Shelton Pitney, all of Newark, for petitioner.

Harry E. Newman, of Lakewood, and Treacy & Milton, and John Milton, all of Jersey City, for respondent.

fees upon a voluntary dismissal before trial. Allowance of counsel fee rests solely on the statutes, except where trust funds in the control of the court are being administered. In re Queen, 82 N. J. Eq. 588, 89 Atl. 860; Sparks v. Ross, 82 N. J. Eq. 121, 88 Atl. 214; Lawyers' Title & Trust Co. v. Comptroller, 85 N. J. Eq. 481, 95 Atl. 1003.

[2] Section 91 of the Chancery Act (C. S. p. 445; P. L. 1910, p. 427) provides that—

"In any cause, matter or proceeding in the Court of Chancery, the Chancellor may make such allowances by way of counsel fee to the party or parties obtaining the order or decree as shall seem to him to be reasonable and proper."

This is the only legislation covering the al· lowance of counsel fees in chancery. Now, it is obvious that, if the motion were grant

ed, the respondent would not be "the party or parties obtaining the order or decree," and, on the other hand, the petitioner would not be "the successful party" in the case, for he has quit. It would appear that the two enactments above noted aimed to give BACKES, V. C. This is a strife between instances, in its discretion, and, if this was the court power to grant counsel fees in all divorced parents for the custody of their two children. The decree of divorce, granted the legislative scheme, then, plainly, there by the court of common pleas of Philadel- is an hiatus, and counsel fees on a voluntary phia, Pa., makes no disposition of the chil- dismissal fall within the gap. The language dren. They now reside at Lakewood, in this of each of the enabling acts is so explicit and state, with their mother. The father, a res-inclusive that bridging the gap by judicial ident of Chestnut Hill, Pa., petitioned this construction is not permissible. But the matcourt to award their custody to him. The ter of counsel fees is of secondary considermother, in her answer to the petition, allegation. The main question is whether the pees that he is an unfit person to have them, titioner is entitled to dismiss his petition. specifically setting forth the grounds for the allegation, and prays that they be awarded to her. The charge of unfitness is traversed, and the cause was set down for hearing. Before the hearing day the petitioner moved to dismiss his petition, as a matter of course, upon the payment of costs. This was denied him, and he was directed to give notice of the motion.

[3] Ordinarily a complainant has control over his cause and may dismiss at pleasure, before trial, on payment of costs. But this general and well-established rule has no place in a proceeding such as the present, wherein the Chancellor, as parens patriæ, is appealed to, to decide, as between parents, to which of them should be awarded the permanent custody of their children, [1] Upon the argument the respondent ob- wards of the court, brought under his jurisjected to the dismissal, insisting that it is diction by the petition and the writ of haher right to have the issue determined, and, beas corpus-a proceeding to obtain a judicial at all events, that the dismissal should be declaration fixing their status as regards on payment of costs, including a counsel fee. their permanent custody, and settling the The counsel fee was resisted on the ground rights of the parents with respect to such that the court was without power to allow it, custody, upon the issues raised by the pleadthe argument being that counsel fees, like ings-a legal drama, or rather tragedy, in costs, are creatures of statutes, and that which the parents, both alike, are actors. there is no statutory provision for counsel [4] The respondent filed no cross-petition,

(116 A.)

and, I take it, none is necessary to protect and preserve the cause against a voluntary dismissal. Her answer, asserting her claim

(121 Me. 576)

HARMON v. MATHIS et al.

1922.)

1. Appeal and error 861-Case submitted on report is determined on merits.

to the children and praying for their custody, (Supreme Judicial Court of Maine. Feb. 14, gives her the right to have her claim adjudicated, and of this she cannot be deprived by the petitioner's withdrawal from the contest. He may refuse to prosecute, and he may decline to further resist her claim to the children; but he is not in a position to bring the litigation to an end by a dismissal of his petition. The case, in a sense, takes on the aspect of an interpleader suit.

A case submitted on report is shorn of all technicalities, and is to be decided on its merits as determined from the evidence regardless of the pleadings.

2. Reference 99 (6) -Auditor's report is prima facie evidence of facts and conclusions therein.

Report from Superior Court, Cumberland

County, at Law.

Action by Harmon, executrix, against one Mathis and others on a promissory note. On report to the law court. Judgment rendered for plaintiff.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

[5] There is also this reason why the petitioner should not be allowed to dismiss his An auditor's report, when offered in evipetition. He is a nonresident. The court dence, is prima facie evidence of the facts and now has jurisdiction of the subject-matter, conclusions therein contained, and requires a and over the petitioner by his voluntary sub- judgment in accordance therewith unless sucmission. The respondent ought not to be de-cessfully attacked for error of law or of fact. prived of this advantage, and the benefit of a decree (if the children are ultimately awarded to her) of indisputable integrity and force, and that will spell res adjudicata in every tribunal, at home or abroad, wherever presented. If the petitioner is permitted to escape the jurisdiction by dismissing his petition, and the respondent is put to her petition to have her right to the custody of her children judicially established, he could not again be brought into court. There is no provision in the statute for substituted service of process in cases of this nature. The Fred V. Matthews, of Portland, for deprovision of the Chancery Act (C. S. p. 414) fendants. applies solely to service upon absent defendants to bills and is not available. Service PER CURIAM. [1, 2] This is an action by notice might perhaps estop him from later upon a promissory note for $4,130, with inattacking the adjudication in this state, but terest at 8 per cent. per annum, said princithe decree would have no extraterritorial ef- pal sum and interest payable in amount and fect. The advantage gained by the respond- upon the dates therein mentioned; in other ent, by the petitioner's voluntary submission Words, upon a promissory note payable in installments. The cause is reported to the to the jurisdiction of the court, and the prej-law court upon the writ, pleadings, plaintiff's. udice her cause would suffer, if he were re-exhibit, which is the note in suit, and the leased, precludes the right to dismiss and auditor's report, the law court to render such

withdraw.

Sherman I. Gould, of Portland, for plaintiff.

judgment as is warranted by the pleadings and so much of the evidence as is legally admissible. It is well established that cases submitted on report are shorn of all technicalities and are to be determined upon their merits, regardless of the pleadings; in other words, a reported case is to be decided upon the evidence. The decision of the present case, therefore, depends upon the consideration of the auditor's report. When such a report is offered in evidence, it is regarded as prima facie evidence of the facts and conclusions therein contained. It is then open

[6] Authority for the rule that a suitor controls his cause, and may dismiss upon the payment of costs, may be found in the textbooks on Practice and in any of the current Digests. The exceptions to the rule are also noted. Vice Chancellor Pitney, in McCarren v. Coogan, 50 N. J. Eq. 268, 24 Atl. 1033, discussed the exceptions and cited the authorities. I have found no case dealing with the precise point in circumstances like the present, but the principle that runs through the cases upon which the exceptions to the rule are based-that when the defendant has to attack only to the extent of the correction gained an advantage in the (progress of the cause, which would be prejudiced by a dismissal, the rule is not applicable-supports the respondent's objection to the motion to dismiss. The motion will be denied.

The cause may be brought on for hearing on giving the usual notice.

of errors, if any, which it may contain, either of law or of fact. The evidence seems to have been fully considered by the auditor as shown by his report, which is carefully and comprehensively drawn.

We are of the opinion that the prima facie effect of the report has not been overcome,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and that judgment should be rendered for the plaintiff in accordance with his report. Judgment for the plaintiff for $4,255.96, and interest from August 15, 1918.

(121 Me. 141)

YOUNG v. POVICH.

B. E. Clark, of Bar Harbor, for plaintiff. H. L. Graham, of Bar Harbor, for defendant.

SPEAR, J. This case involves an action for money had and received, for the recovery of $100, paid in advance upon the following written instrument:

"I, Nathan Povich, of Bar Harbor, lease to (Supreme Judicial Court of Maine. Feb. 14, Charles W. Young, of Bar Harbor, for the sum

1922.)

1. Landlord and tenant 125 (2)-In lease of furnished dwelling house for short time there may be implied warranty of reasonable suitability.

In a lease of a furnished house for a short time and for temporary purposes, there may be an implied warranty that the dwelling is reasonably suitable for use and occupation.

2. Landlord and tenant 125 (2)-What is "short term," or term for "temporary" purpose, to which rule of implied warranty applies, is question of fact for jury.

What is a "short term" or a term "for

of three hundred and fifty dollars ($350) until April 1, 1921, the two furnished flats over the stores in the Povich Block, on Main street, with the agreement that said Charles Young will pay one hundred dollars ($100), and the balance in amounts of thirty-five dollars ($35) or more per month, until the sum of two hundred and fifty dollars ($250) is paid, and that, should any of my family come to Bar Harbor, they shall be entitled to a room for the length of time they wish to stay."

The specifications under the declaration are as follows:

temporary purposes," as distinguished from a the said plaintiff entered into possession and "By reason of said promise and agreement "long term," within the rule of implied war- occupancy of said tenement, but found the bedranty that a leased dwelling house is reasonably bugs so amiable and friendly that he was unsuitable for use and occupation, must be treated able to occupy said furnished flat; that they as a question of fact for the jury, depending bit him and his family and made said tenement on the circumstances of each case; "temporary" meaning "lasting for a time only, existing or continuing for a limited time, not of long duration, not permanent, transitory, changing, but a short time" (citing Words and Phrases, First and Second Series, Temporary).

3. Appeal and error 861-On report, Supreme Judicial Court must exercise jury

wholly uninhabitable."

The plea is unnoticed, as the case was reported to the law court as follows:

"By agreement of parties this case is redetermine from so much of the foregoing eviported to the law court: The law court to dence as is legally admissible: (1) Whether said house was fit for occupation as a furnished house. (2) As a matter of law whether there was an implied warranty that said house and. furniture therein should be fit for use and occupation.

"If the law court finds from the evidence that said house as furnished was not fit for use and occupation, and that there was an imture therein should be fit for use and occupaplied warranty that said house and the furnition, judgment to be for the plaintiff for the sum of one hundred dollars ($100) and costs; otherwise, judgment to be for the defendant."

The report first presents a question of fact as to whether the house as furnished' was fit for use and occupation. Without rehearsing the testimony, we think it amply sustains the burden of proof that it was not fit for use and occupation.

A lease of a furnished dwelling house for eight months from the beginning of the summer season at a summer resort held within the rule of implied warranty that such a house, leased for a short time and for temporary pur[1] This brings us to the question of im-poses, is reasonably suitable for use and occu-plied warranty. The law is well settled upon pation. the force and effect of a lease in the follow

Report from Supreme Judicial Court, Han- ing respects: cock County, at Law.

(1) When a landlord leases an unfurnished dwelling house to a tenant, whatever the Action by Charles Young against Nathan length of the period, there is no implied warPovich. On report. Judgment for plaintiff. ranty that such dwelling house is reasonably Argued before CORNISH, C. J., and fit for habitation, unless he has made a SPEAR, HANSON, PHILBROOK, MOR- valid agreement to that effect. The common RILL, and DEASY, JJ. law of caveat emptor is still in force in this

(116 A.).