shall render the public has, in cases in which the Legislature has made no provision, been committed to the courts for determination and decision." Fritts v. Delaware, etc., R. Co., 75 N. J. Eq. 384, 73 Atl. 92. [5] 4. The objection of the complainant that the question of jurisdiction cannot be raised upon demurrer is unsubstantial. Daniell's Ch. Pr. 549; Story's Eq. Pl. § 472; Mitford, Pleadings, 89; Rothholz v. Schwartz, 46 N. J. Eq. 477, 19 Atl. 312, 19 Am. St. Rep. 409. [6] 5. On the argument, the complainant's counsel urged that the defendant's threatened conduct to void the basin, even temporarily, would be an obstruction to a public highway and a public nuisance, which a court of equity will enjoin. If we should entertain the allegations of the bill in this narrow and restricted view, which is altogether inadmissible, it cannot avail the complainant, because it fails to show some special injury peculiar to itself, aside from and independent of the general injury to the public. The right which the complainant has in the use of the canal arises out of the defendant's legal duty to furnish means of transportation over the highway to the public, and this right and duty is not enlarged because the complainant's landing place is located upon the defendant's canal basin. It does not appear by the bill under what circumstances the complainant chose to put its dock at this point, and, in the absence of allegations, it is not to be assumed that any additional rights or duties flow from this circumstance; and it follows that the wrong to be suffered by the complainant will be to its right of navigation in common with the public at large and for which it cannot have redress. High on Injunction (4th Ed.) § 762; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Allen v. Board of Chosen Freeholders, 13 N. J. Eq. 68: Zabriskie v. Jersey City & B. R. Co., 13 N. J. Eq. 314; Humphreys v. Eastlack, 63 N. J. Eq. 136. 51 Atl. 775. [7] 6. The complainant has a complete and adequate remedy at law. Recourse may be had to the board of public utility commissioners (P. L. 1911, p. 374), or to proceedings by mandamus, possibly upon its own relations or maybe as a relator in the name of the Attorney General. Jacquelin v. Erie R. Co., supra. An action for damages will furnish full relief. The apprehended invasion of the complainant's right will not involve an irreparable injury. The injury is not of a permanent, continuous, or recurring nature. Rogers, etc., Works v. Erie Ry. Co., 20 N. J. Eq. 379; Barnett v. Johnson, supra. In so far as the bill discloses, it is of a most ing of said lower basin that it is necessary to inspect and repair the wickets on said lock once in each four years," but this meager statement does not amount to an averment that the defendant threatens to again close the basin four years hence. That the closing of the basin will destroy or even diminish the complainant's trade is not averred, nor is it to be implied. It may be that, in the carrying on of its trade as a forwarder, the complainant will be obliged to dock its boats at some other point along the Raritan river at New Brunswick, which may be less convenient and involve costs of additional hauling; but this loss can be readily ascertained in dollars and cents. In fact, the bill measures the complainant's anticipated loss at the sum of $500 a day. No question is raised as to the ability of the defendant to respond. In the case of Sperry & Hutchinson Co. v. Hertzberg, 69 N. J. Eq. 264, 60 Atl. 368, Vice Chancellor Stevenson said: "It is not alleged that the defendant is not fully responsible for any amount of damages which the complainant could possibly recover against him in an action at law. While the defendant's operations may cause damage to the complainant in its business, there is nothing to justify the apprehension that such damage will be permanent or so extensive during the period which will be required for the ascertainment at law of the complainant's right as to make the complainant's compensatory recovery at law, in case he secures one, in any degree inadequate. The fact that the damages of the complainant may be difficult of ascertainment, and the fact that the defendant's conduct, if illegal, amounts to a continuous violation of the complainant's rights, are not circumstances which can be recognized in this court, as the law stands to-day, as taking the case out of the operation of the well-settled general rule." [8] 7. It being an absolute, certain, and clear proposition that, taking the charges in the bill to be true, the bill would be dismissed on final hearing (Vail's Ex'rs v. Central R. Co., 23 N. J. Eq. 466), the demurrer will be sustained, and the bill dismissed, with costs. (85 N. J. L. 188) McGRATH v. MAYOR AND COUNCIL OF CITY OF BAYONNE. (Court, of Errors and Appeals of New Jersey. Dec. 4, 1913.) 1. MUNICIPAL CORPORATIONS (§ 159*)-OFFICERS REMOVAL REMEDY CERTIORARI -QUO WARRANTO-"OFFICE." The office of assistant building inspector of a city, created by resolution that a person namtemporary and transient kind. The avered should be appointed and elected assistant ment is that the defendant threatens to building inspector, and that such office was close the basin, between the time of the fil- created for one year at a specified salary, fling of the bill and March 17th then next. It lowed by resolutions for the appointment of is true that the complainant alleges that the others for a year each, is a "position," and not an "office," which is a place in a governmental defendant gave "as an excuse for the clos-system created or recognized by law of the [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 350-356; Dec. Dig. § 159.* For other definitions, see Words and Phrases, vol. 6, pp. 4921-4931; vol. 8, p. 7736.] 2. MUNICIPAL CORPORATIONS (§ 157*)-OFFICERS REMOVAL REMEDY CERTIORARI -QUO WARRANTO-“POSITION." The place of assistant inspector of buildings of a city, created by a resolution declaring that a person named should be appointed assistant building inspector, and that such office was created for the term of one year, followed by subsequent resolutions appointing others to the place at an annual salary, is a "position" within P. L. 1911, p. 444, protecting exempt firemen from removal except on charges and a hearing, and a resolution removing an exempt fireman from the place without charges and a hearing is illegal. state, to which permanent public duties are and is hereby appointed and elected assistassigned, either by the law or by regulations ant building inspector in place of Thomas adopted under the law, by an agency created Noolan for the term ending December 31, by it and acting in pursuance of it, and certiorari, and not quo warranto, is the proper 1910, at the salary of $1,000 per annum, said remedy to test the legality of the removal of term to begin on the adoption of this resoluan appointee. tion"-and pursuant thereto McGrath became assistant building inspector, and served as such without further action on the part of council until January 1, 1912, when the following resolution was passed: "Resolved that William Dwyer be and he is hereby appointed and elected assistant building inspector for the term of one year at a salary of $1,000 per annum." Upon the adoption of this last resolution, and under its provisions, Dwyer assumed the position of assistant building inspector of the municipality. Thereupon McGrath sued out a writ of certiorari, attacking the validity of this action of council upon the ground that he was an exempt fireman of the city of Bayonne, holding an exemption certificate regularly issued to him, and that the effect of the resolution was to remove him from the office or position of assistant building inspector without cause, and without a hearing, in violation of section 1 of an act regarding exempt firemen of volunteer fire departments, approved April 24, 1911. Pamph. Laws, p. 444. The section appealed to provides that: "No person now holding a position or office under the government of this state, or the government of any county, city, town, township or other municipality of this state, or who may hereafter be appointed to any such position, whose term of office is not now fixed by law, and receiving a salary from such state, county, city, town, township or other municipality, who is an exempt fireman of any volunteer fire department, * * holding an exemption certificate issued to him as such exempt member of any such volunteer fire department [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 300, 347; Dec. Dig. § 157.* For other definitions, see Words and Phrases, vol. 6, pp. 5460, 5461.] 3. MUNICIPAL CORPORATIONS (§ 157*)-OFFICERS REMOVAL REMEDY - CERTIORARI -QUO WARRANTO, P. L. 1911, p. 444, protecting exempt firemen from removal from a public office or position except on charges and a hearing, does not apply to the position of assistant building inspector of a city, created by resolution of its Council pursuant to statutory authority, and fixing the term of office for one year when the term of an appointee has expired. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 300, 347; Dec. Dig. § 157.*] Error to Supreme Court. Certiorari by Thomas J. McGrath against the Mayor and Council of the City of Bayonne. There was a judgment of the Supreme Court (83 N. J. Law, 224, 83 Atl. 780) annulling a resolution adopted by the Board of Councilmen of Bayonne, and they bring error. Reversed. Daniel J. Murray, of Bayonne, and Warren Dixon, of Jersey City, for plaintiffs in error. Benny & Cruden, of Bayonne, for defendant in error. GUMMERE, C. J. On January 1, 1908, the board of councilmen of the city of Bayonne adopted a resolution providing "that Thomas Noolan be and he is hereby appointed and elected assistant building inspector, which office is hereby created for the term of one year, at a salary of $1,000, and that the salary be paid from the building inspectors' fund." Noolan served as assistant building inspector from the date of his appointment until March 1, 1910, holding over beyond the expiration of his term with the apparent acquiescence of council. On the day last named council adopted a resolution reading as follows: "Resolved that Thomas McGrath be shall be removed from such position or office except for good cause shown after a fair and impartial hearing, but such exempt fireman shall hold his position or office during good behavior and shall not be removed for political reasons." The status of McGrath as an exempt fireman was not controverted, nor was the fact that the resolution under review was adopted without any charges having been made against him, and without a hearing afforded him. Upon the return of the writ, and after full argument. the Supreme Court held that the resolution was in contravention of the statutory provision appealed to, and for this reason set it aside. The judgment of the Supreme Court is now before us for review. [1] It will be observed that the first section of the act of 1911 protects an exempt volunteer fireman who holds either a position or an office under the government of the state, or under the government of one of the municipalities thereof, the term of which was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes yearly term. The board of councilmen, by not fixed by law at the date of the enactment | tinuing one, the appointee to hold for a of the statute; and the first contention made before us on behalf of the defendant municipality, and also urged before the Supreme Court, is that the assistant inspectorship of buildings of Bayonne is an office within the meaning of this statute, as distinguished from a position, and that consequently the right of the incumbent to hold it can only be contested by quo warranto proceedings-in other words, that the prosecutor below had mistaken his remedy-and that for this reason the certiorari should have been dismissed. The assistant inspectorship was created by the above-recited resolution of January 1, 1908, and it is therein designated as an office. But this fact is of little significance in determining its character. An office, as defined by our decisions, is a place in a governmental system created, or at least recognized, by the law of the state, to which certain permanent public duties are assigned, either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it. Stewart v. Freeholders of Hudson, 61 N. J. Law, 118, 38 Atl. 842; Fredericks v. Board of Health of West Hoboken, 82 N. J. Law, 200, 82 Atl. 528. The proofs in the present case show that the place involved in this contest does not possess these characteristics. Certiorari, therefore, and not quo warranto, was the proper proceeding for contesting the validity of the action of council in appointing Dwyer to the place occupied by McGrath (MacDonald V. Newark, 55 N. J. Law, 267, 26 Atl. 82; Peterson v. Freeholders of Salem, 63 N. J. Law, 57, 42 Atl. 844), and the Supreme Court was right in refusing to dismiss the writ for the reasons stated. [2] Not being an office, the next question presented for consideration is whether the assistant inspectorship of buildings is a position within the meaning of the act of 1911. In the case of Fredericks v. Board of Health of West Hoboken, supra, the Supreme Court, in considering what was a position within the purview of a similar statute protecting the occupant thereof from arbitrary removal, correctly defined it to be a place analagous to an office in that the duties which pertain to it are permanent and certain, but different therefrom in that such duties may be nongovernmental, and are not assigned to it by any public law of the state either directly or by delegated authority. Are the duties of the assistant inspector of buildings of Bayonne permanent? This depends upon the true construction of the resolution of January 1, 1908, which created the place. significant words of the resolution are "which office is hereby created for the term of one year at a salary of $1,000." They are capable of either one of two meanings: First, that the place was to cease to exist at the expiration of a year from the date of its The [3] Finally, was the term of such assistant inspector fixed by law at the time of the enactment of the statute of 1911? For the statute does not apply to exempt firemen holding offices or positions having definite terms which were so fixed. It is conceded by counsel on both sides that the creation of this position by the board of councilmen was within the power of that body; in other words, that the charter of Bayonne, passed by the Legislature, authorized such action by the municipality. Having the power, by legislative delegation, to create the position, it follows, we think, that, in the absence of restrictive words in the charter (and there are none such), the board of councilmen also had, by necessary implication, the power to prescribe its duties and the term during which a given occupant should serve. At the time, therefore, of the passing of the original resolution the board of councilmen, both in the creating of the position and in the fixing of its terms, of its salary, and of its duties, was exercising powers conferred upon it by the Legislature. Is, then, a resolution, passed under such authority, a law within the meaning of the provision of section 1 of the act of 1912? We think it is. The statute deals both with state and municipal offices and positions--not only with offices and positions created by statutes, but with those created by municipal ordinances or resolutions-and these latter enactments, when authorized by the Legislature, are just as much laws within the boundaries of the municipality by which they were passed as are the former within the boundaries of the state itself. Bradshaw v. Camden, 39 N. J. Law, 418: Bohan v. Weehawken, 65 N. J. Law, 490, 47 Atl. 446. It follows, therefore, that an office [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 171-179; Dec. Dig. § 49.*] dinance or resolution adopted pursuant to | he continued to treat her with extreme cruelty power conferred by the Legislature upon the until she fled from his home. governing body for that purpose is just as much created by law, and its term, when fixed by such ordinance or resolution, is just as much fixed by law, as if the Legislature itself had acted in the premises. It results from the views which we have expressed that the judgment setting aside the resolution of January 1, 1912, appointing Dwyer as assistant building inspector, is erroneous. The position being one that had an annual term fixed by law at the time of the enactment of the statute of 1911, it was the duty of the board on the 1st of every January to appoint its occupant for the then ensuing year, and its failure to perform this duty on the 1st of January, 1911, when McGrath's term under his original appointment expired, could not relieve it from doing so on the 1st of January, 1912: much less could it operate to render its action on the latter date invalid. The judgment under review will be reversed. LEECH v. LEECH. (Court of Chancery of New Jersey. Nov. 24, 1913.) 1. DIVORCE (§ 49*)-ADULTERY-CONDONATION. While the act of a wife in submitting to intercourse with her husband through force or duress, with knowledge of his previous adultery, world not constitute condonation thereof as a ground for divorce, yet where she continued to do so over a period of seven months, her acts could not be held involuntary within the rule that the injured spouse is placed to her election either to terminate their relations or forego the remedy for the offense. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 171-179; Dee. Dig. § 49.*] 2. DIVORCE (§ 49*)-ADULTERY-CONDONATION -SUBSEQUENT CRUELTY. A husband's adultery affording ground for divorce was not condoned by the wife's subsequent submission to intercourse with him, where Petition by Charles W. Leech against Sarah E. Leech for divorce, in which defendant filed an answer and cross-petition. Petition dismissed, and decree in favor of crosspetitioner. Petitioner seeks a divorce against his wife for desertion. The petition alleges that his wife deserted him by permanently leaving his home December 10, 1908, and that the desertion has been willful, continued, and obstinate for more than two years preceding the commencement of this suit against her. The petition was filed April 6, 1912. The wife in her answer admits that she left petitioner's home December 10, 1908, and has not since returned, but alleges that she was at that time obliged to leave petitioner by reason of his extreme cruelty. By her crosspetition she seeks a divorce from petitioner by reason of his constructive desertion of her in driving her from his home by his cruel treatment, and also by reason of adultery, which she charges that her husband committed prior to her leaving him. By his answer to the cross-petition petitioner denies the charge of constructive desertion, and alleges condonation as a defense to the charge of adultery. Joseph Beck Tyler, of Camden, for petitioner. Scovel & Harding, of Camden, for defendant and cross-petitioner. LEAMING, V. C. (after stating the facts as above). There is little doubt touching the essential facts of this case. About seven months before Mrs. Leech left her husband's home she ascertained that he was living in adultery with the woman named as co-respondent in her cross-petition. The evidence at that time brought to her knowledge was the same evidence which she produced at the hearing; that evidence conclusively establishes the husband's guilt. When she learned of her husband's adulterous habits she confronted him with the charge, and he brutally informed her that it was none of her business. Had she left him at that time no question touching her right to a divorce But she did not then leave could exist. her husband's home because she could not; she saw no way in which she could support herself and her son, in whom her life was centered. Accordingly she moved from the bedroom which she had theretofore shared with her husband to another bedroom in the same house for the purpose of escaping his embraces. From that time she never returned to his room or voluntarily permitted him to come to her room. But her purpose to deny to her husband sexual intercourse was futile. From time to time her husband would go to her bedroom and demand and It is of course true that the act of submission by the wife to sexual intercourse through force or duress would not constitute condonation, but continued acts, extending over a period of seven months under the circumstances stated, cannot be classed as wholly involuntary if the doctrine of election by the injured party to forego the legal remedy is preserved in its fullness as the basis of adjudications in cases of this class. receive the sexual privileges he sought. Her the remedy afforded. From the foregoing statement of facts it will be observed that the wife has at no time since she learned of her husband's adultery voluntarily submitted to his embraces, nor did she at any time during that period in fact forgive him for either his adulterous conduct or his other acts of cruelty. This raises the question whether the failure of the wife for so long a period of time after she learned of her husband's infidelity to withdraw from his presence in such manner that it would not longer be necessary for her to submit to his embraces, with the knowledge on her part that her failure to so withdraw from his presence would necessitate the repeated acts of sexual intercourse with him which the testimony discloses in fact occurred, is operative to now deny to her the benefit of the claim that her sexual intercourse with her husband was involuntary and without forgiveness, and did not, in consequence, constitute condonation. [1] I should have great hesitancy in holding that submission by the wife to sexual intercourse with her husband under the circumstances already stated constituted condonation if that question could be properly considered an open question in this court. But in Rogers v. Rogers, 67 N. J. Eq. 534, 58 Atl. 822, the view is unequivocally adopted that the law places upon the injured spouse the election to terminate sexual intercourse or forego the remedy which the law gives for the offense, and that forgiveness, in its popular sense, is not a necessary element of condonation. In Rogers v. Rogers, the adultery was by the wife, and no element of involuntary marital cohabitation was involved, but the rule is there laid down that courts will not seek to discover the reasons [2] I think it unnecessary, however, to here determine whether the inability of the wife to leave her husband's home, coupled with her continued submission to his embraces through fear of personal injury in the event of her refusal, constitute condonation; for, even though it be assumed that sexual intercourse under the circumstances stated constitutes condonation, such condonation will always be deemed conditional. That principle is stated by Vice Chancellor Van Fleet, in Warner v. Warner, 31 N. J. Eq. 225, as follows: "Condonation is always conditional, the condition being that the pardoned party shall in the future treat the other with conjugal kindness. And by this is meant that he shall not only refrain from a repetition of the offense forgiven, but shall also refrain from committing any other offense which falls within the cognizance of a matrimonial court." It is therefore held with great uniformity that if after the adultery of a husband has been condoned by his wife he is guilty of extreme cruelty to her, the conditional element inherent in condonation is violated, and condonation no longer exists as a bar to relief based on the offense thus conditionally condoned. In 14 Cyc. 643, this rule is state as follows: "An offense which has been condoned may be revived not only by a repetition of the same offense, but also by the subsequent commission of other marital offenses. Thus the act of adultery will be revived by subsequent cruel and unkind treatment." The history of this doctrine and the extent to which it has been adopted by the courts of this country is fully shown in 2 Bishop on Marriage, Divorce & Separation, sections 308 to 323. In the present case it is not definitely known how long the adulterous acts of the husband continued after the wife was apprised of his adulterous conduct, but his extreme cruelty not only continued throughout the entire period already referred to, during which he had access to her bed, but continued thereafter. As already stated, the last act of sexual intercourse between the parties was about a week before she fled from his home. His extreme cruelty continued up to the time of her departure. It is entirely apparent from the evidence that at that time the husband's habits and conduct were such that the wife could not, with safety to either her health or her life, longer remain |