BERGEN, J. The prosecutor seeks, by this writ, to test the validity of an ordinance We think the judgment should be reversed. of the city of Trenton which abolishes a sub

ordinate office now held by him, and he rests his right to the relief sought upon the ground that he was appointed by the street commis

(82 N. J. L. 101) MCAVOY v. INHABITANTS OF CITY OF sioner of Trenton "clerk of the street de

partment" on January 1, 1910, for the term (Supreme Court of New Jersey. July 21, 1911.) of three years, and his claim is that the com

mon council has no right to abolish such official position, or to deprive him of its benefits until the expiration of the terms for A clerk of the street department is one of which he was appointed, and he bases this the subordinate officers whose appointment by upon an ordinance of the city of Trenton apthe council is authorized by the charter of the city of Trenton, but his term of office is for proved April 23, 1908, which authorized and one year unless sooner removed, and an ap-empowered the street commissioner to appointment for three years is beyond the power point two assistants "and one clerk who of the council. shall perform such duties as may be required of him by the street commissioner, and the terms of said offices shall run concurrently with the terms of the street com

persons to perform these functions.

The as it shall deem necessary. Under a like

position held by the plaintiff is the creature statute it was held in Volk v. Newark, 47 N. J. Law, 117, that an ordinance which deprives the council of the power to appoint and remove by a majority vote was void. In Gouldey v. Atlantic City, 63 N. J. Law, 537, 42 Atl. 852, the court said: "Nor can the council by ordinances or otherwise divest itself or its successors of the power and the corresponding duty to exercise the power in substantial accordance with the purpose of the law." To the same effect is Cleary v. Trenton, 50 N. J. Law, 331, 13 Atl. 288. While the common council may delegate to its agent or a committee the power to contract for the purpose of carrying out an object decided upon, the power of appointment vested by law in the council cannot be delegated. So in the present case where the power to appoint subordinate officers is vested in the common council it cannot delegate the selection of such officer to another officer, for no such power is given by law. It may delegate duties of a ministerial or administrative character, but not a duty which requires judgment and discretion, and, where the common council was authorized to employ suitable architects and other persons to accomplish the object permitted, it was held that the employment of the persons named could not be delegated to another without express legislative authority. State v. Paterson, 34 N. J. Law, 163-168. The appointment of subordinate officers in Trenton is vested in the council and the exercise of that power requires their united wisdom and experience, and, where this is the case, the common council cannot delegate that power to another. Dill. Mun. Corp. 96. The provisions of the charter as to time and mode of election, the appointment, etc., must be strictly observed. Dill. Mun. Corp. § 207. Therefore the city in this case having by ordinance created the subordinate office, it could not delegate to the street commissioner the power to select the subordinate officer. That the term "subordinate officer" used in the charter applies to the office of the prosecutor as distinguished from employés who serve without official designation, and whose terms are not provided for or protected by ordinance, it seems to us is indisputable. The prosecutor being one of the subordinate officers authorized by the charter, his term of office is governed by it, and the council itself, much less its agent, could not appoint for a longer term than that fixed by the

of the board of commissioners. It is entire-
ly unknown to the statute, *
* nor is
there anything in the nature of the employ-
ment itself that calls for the presence of a
public functionary. Every one of its duties
can be discharged by a private agent." An
architect employed by the commissioners to
build a city hall and to prepare plans for the
hall is not a public officer. State v. Broome,
61 N. J. Law, 115, 38 Atl. 841. A keeper of
a reservoir is not invested with any posi-
tion of political power, and is not a public
officer. Uffert v. Vogt, 65 N. J. Law, 377, 47
Atl. 225. A janitor of a police station is not
a public officer. Dolan v. Orange, 70 N. J.
Law, 106, 56 Atl. 130. We therefore are of
the opinion that the prosecutor was not à
person holding an office requiring the per-
formance of a public function, and subject
to the rule relating to public officers, and the
next question to be considered is whether
the power to appoint him to the position he
now claims to hold can be delegated by the
common council to the street commissioner.
[1] The city charter empowers the com-
mon council to appoint certain officers, among
them being, by Act 1900, p. 415, a city street
commissioner, "and shall from time to time
appoint such subordinate officers as the com-
mon council deem necessary for the ordering
and governing of the city, and the execution
of the powers and duties conferred and im-
posed." P. L. 1874, p. 331, § 17. Under this
statute the common council had power to
provide for a clerk of the city street commis-
sioner, if it deemed such officer necessary,
and by an ordinance passed April 23, 1908,
the street commissioner was empowered to
appoint two assistants “and one clerk who
shall perform such duties as may be requir-
ed of him by the street commissioner." The
term of office of the clerk was made to run
concurrently with the term of the street com-
missioner, which, as fixed by statute, was
three years. The prosecutor was appointed
such clerk by the commissioner, and the de-
fendant challenges his right to the office, be-
cause, as it is insisted, he was not legally
appointed to the office which he now claims
to hold, which is the basis of his right to
make this contest.

[5] That the defendant can raise this point without direct attack upon the ordinance under which the prosecutor was appointed seems to be settled in Loper v. Millville, 53 N. J. Law, 362, 21 Atl. 568.

[2] The position of the prosecutor in this proceeding is that he has a contract with the city which will be annulled if this ordinance is sustained, and therefore, if he has no right to the position, that is, if he is not a subordinate officer authorized by the charter, he is not qualified to contest the ordinance. The charter provides that the com mon council "shall by the votes of a majority of all of its members appoint" certain of

statute.

Section 17 of the charter provides that all the officers named, as well as such subordinate officers as the council may deem necessary, shall hold their several offices for one year, unless sooner removed; and, while the act of 1900 (P. L. p. 415) provides for additional officers and changes the term of certain officers named, it does not refer to the subordinate officers, and as to them the manner of appointment and terms of office remain un

council authorized the street commissioner to | The prosecutor is not entitled to the relief appoint a clerk and made his term concur- sought, and therefore the writ will be disrent with that of the street commissioner, missed, with costs. which was three years, the common council had no authority to appoint for a longer period than one year, and then he was subject to removal within the year. The charter prevents one common council from fastening upon its successors for a term of years subordinate officers, whose services may become unnecessary; they are to be appointed, when necessary, for one year unless sooner removed, and this is a wise provision, and allows the common council an opportunity to exercise economy in municipal affairs whenever the subordinate officers become too numerous or salaries excessive.

GAGOR.

"All sums paid for said releases shall be applied on account of the aforesaid debt of forty-one thousand three hundred dollars, and a certain mortgage owned by Camden, Atlantic and Ventnor Land Company to secure the payment of fifty-eight thousand seven hundred dollars and deducted therefrom.

5. MORTGAGES (§ 154*) -RIGHTS OF BOND- | Rightmire, city engineer, Ventnor City, N. HOLDERS- MISREPRESENTATIONS BY MORT-J.,' which said map is duly filed in the clerk's As a rule bonds and the mortgage securing office of said Atlantic county, or intended so them must be considered together, and holders to be. of bonds referring to the mortgage are charged with notice of its contents, and where third mortgage bonds referred to the mortgage, which, in turn, referred to prior mortgages, and also stated that a part of the proceeds of such bonds should be used to pay for releases of the liens of the prior mortgages from lots covered by them, which were to be conveyed to the bondholders, and the prior mortgagees had no knowledge that the third mortgage bonds were designated "first mortgage bonds" or of any misrepresentations by the mortgagor to the third mortgage bondholders as to the status of the bonds, the latter were not entitled to any relief as against the first and second mortgagees because of any misrepresentations by the mortgagor. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 344-353; Dec. Dig. § 154.*]

Suit by the Ventnor Investment & Realty Company against the Record Development Company and others, in which some of the defendants file a cross-complaint. Decree as

stated.

Godfrey & Godfrey (H. Starr Giddings, of counsel), for complainant. John S. Westcott, for Record Development Co. and receiver. Gaskill & Gaskill, for Camden Safe Deposit & Trust Company. Bourgeois & Coulomb, for Wade and others. U. G. Styron, for Shaw and others. Terry Parker, for Archibald Parker and others. James M. Sheen, for Birmingham and others. Morris M. Gorson, for Gorson and others.

LEAMING, V. C. I am convinced that the several cross-complainants, who as purchasers of lots forming part of the mortgaged premises seek to avail themselves of the benefit of the covenant touching releases contained in complainant's mortgage, are entitled to the relief sought by them.

In reaching this conclusion I think it unnecessary to attempt to define any general rule to control cases of this class. As it is clearly within the power of a mortgagor and mortgagee to covenant that releases may be procured by the vendees of the mortgagor and that such releases may be procured by purchasers after default in the payment of the mortgage has occurred, it necessarily follows that the result of every controversy of this nature must be largely dependent upon the special circumstances of the case.

[1] In the present case the covenant contained in the mortgage is as follows:

"Whereas the Camden, Atlantic and Ventnor Land Company holds a mortgage of fiftyeight thousand seven hundred dollars, which is a prior lien to this mortgage, and whereas the holder of said mortgage has agreed to release any lot or lots from the lien of said mortgage at any time for the sum of forty dollars, for each lot so released, it is agreed that upon the payment of the sum of forty dollars for each lot released from the lien of said first mortgage that the holder of this mortgage will release such lots for the sum of ten dollars per lot."

stood only when considered in connection This covenant can be adequately underwith the circumstances surrounding the transaction at the time the mortgage was executed. Ten dollars per lot when multithe mortgage would amount to a sum less plied by the total number of lots covered by than the amount of the mortgage debt. There was, however, a prior mortgage, the holder of which was to receive $40 per lot for releases, and the release money from less than one-half of the lots at $40 per lot would have discharged the first mortgage. It is therefore manifest that the covenant contemplates the execution of releases by complainant for $10 per lot simultaneously with the execution of releases of the same lots by the first mortgagee at $40 per lot, and that, when the first mortgage should be discharged, complainant would become entitled to $50 per lot for each lot released. The evidence also clearly discloses that complainant's mortgage was executed in the manner stated for the primary purpose of enabling the mortgagor to make sale of the lots comprising the mortgaged premises. The entire tract was laid out into streets and lots, and the mortgagor was to embark upon the enterprise of improving the tract and procuring purchasers for the several lots, and the covenant was manifestly designed to facilitate that work. Lots were accordingly sold by the mortgagor in great numbers, and releases were from time to time executed. For such releases from the two mortgages $40 was paid to the first mortgagee and $10 to complainant. The releases executed by complainant were sometimes made to mortgagor and were frequently made to mortgagor's grantees, and not infrequently to the grantees of

"It is hereby expressly agreed that portions of the above described premises shall and may be released from the operation of this mortgage upon the payment to said party of the second part the sum of fifty dollars for each and every lot so released; said lots being designated on a certain map or plan of said above described premises entitled 'Map of building lots in Ventnor City, N. J., owned by Wheelock Company, by E. D.

the grantees of mortgagor, as will fully ap- contemplates that $40 per lot shall be paid pear by the averment of the bill. [2] Under to the first mortgagee at the time releases these circumstances, it is impossible to con- are exacted from complainant. That part clude that the covenant was regarded by the of the covenant is of importance to complainparties as a covenant personal to the mort- ant, as it reduces the amount of the prior ingagor; on the contrary, it seems entirely cumbrance. It necessarily follows that remanifest that the covenant was to facilitate leases cannot be exacted of complainant unsales and thus benefit the land, and was so less similar releases can at the same time be intended and regarded by the parties to it. procured from the first mortgagee by the The benefits of such a covenant should be payment of the amount named. regarded as running with the land and passing with the land to a grantee of the mortgagor, even though in the covenant it is not expressly stated that it is for the benefit of the assigns of the mortgagor. I am not prepared to say that when a release covenant can reasonably be said to have been made merely to enable a mortgagor to relieve a portion of the mortgaged premises from the lien of the mortgage by payment of a substantial part of the mortgage debt, and not to facilitate sales, such a covenant may not be regarded as personal to the mortgagor, and not for the benefit of grantees of part of the mortgaged premises; but where, as here, it is manifest that the covenant was intended to facilitate the operations of the mortgagor in selling lots to the general public, I think

it clear that the benefits of the covenant should equitably inure to the purchasers of the lots.

Cross-complainants, Archibald E. Parker and Edwina A. Parker, as bondholders under a third mortgage, claim relief by reason of alleged false representations and fraud. The claim of these cross-complainants cannot be sustained. The evidence fails to disclose any misrepresentation or fraud upon the part of either the Camden Safe Deposit & Trust Company, third mortgage trustee, or the first or second mortgagees. If any false representations were, in fact, made to these cross-complainants, they were made by agents of the Wheelock Land Company. The first and second mortgagees were in no way responsible for the third mortgage or for the manner in which the bonds which it secured were sold. [4] It was purely within their privilege to extend the time for the payment of their respective mortgages upon the promise that payments would be made to them from time to time from moneys to be re[3] It will also be observed that the cove- bonds. The evidence wholly fails to disclose ceived by the sale of the third mortgage nant in question is not limited as to time. I think it clear that, when a covenant of any improper conduct or purpose on their part. The third mortgage trustee is also free that nature and for that purpose is not re- from any imputation of misconduct. That stricted as to time, the right to releases for lots sold in good faith prior to default in re- posed upon it as trustee under the terms company strictly performed the duties imliance by the mortgagor upon the covenant of the trust set forth in the mortgage, and will continue after default or even after the duties there prescribed are proper duties foreclosure proceedings are begun. It may to be performed by a mortgage trustee. The well be doubted whether such a covenant grievance asserted by these cross-complaincould be properly held to contemplate sales ants arises by reason of their failure to asmade after foreclosure proceedings had been certain the terms of the mortgage which seinstituted, or even after default, but I see no cured the bonds by them purchased. The bonds reason why redemption cannot be properly which they purchased specifically referred to made by a purchaser whose purchase was the mortgage which secured them, and a refmade prior to default. I think the views erence to that mortgage, as well as a reference here expressed may be said to be in harmony to the public records, would have disclosed the with the decisions which have been brought existence of the two prior mortgages. In the to my attention. See Vawter v. Crafts, 41 mortgage which secured the bonds purchasMinn. 14, 42 N. W. 483; Gammel v. Goode, ed by cross-complainants it was specifically 103 Iowa, 301, 72 N. W. 531; Lane v. Allen, set forth that 75 per cent. of the proceeds of 162 Ill. 426, 44 N. E. 831; Bartlett Estate each bond sold should be paid to the trustee Co. v. Fairhaven Land Co., 49 Wash. 58, 94-that is, $450 for each bond-and from that Pac. 900, 15 L. R. A. (N. S.) 590, 126 Am. St. Rep. 856; Baldwin v. Benedict, 111 Iowa, 741, 82 N. W. 956; Pierce v. Kneeland, 16 Wis. 673, 84 Am. Dec. 726; Squier v. Shepard, 38 N. J. Eq. 331; Hall v. Home Building Co., 56 N. J. Eq. 304, 38 Atl. 447; Avon- to time as the fund reached $10,000 in by-the-Sea Co. v. Finn, 56 N. J. Eq. 805, 41 Atl. 366; Am. Net & Twine Co. v. Githens, 57 N. J. Eq. 539, 41 Atl. 405, 27 Cyc. pp. 1415, 1416. All of the sales of lots here in question were made prior to the time when the mortgage became due.

amount $50 should be used to pay for releases of the liens of the two prior mortgages from lots which were to be conveyed to purchasers of bonds, and the remainder paid to the two prior mortgages equally from time

amount. These proceeds from the sale of bonds were, in fact, so applied by the trustee in strict accordance with the requirements of the mortgage, and the mortgage accordingly affords a complete justification to the trustee for the acts so performed. The