rents which were received by the administrator, after paying the interest, &c., is small, and amounts, as I recollect, to between $100 and $200. The exact amount is not in dispute and can be settled between counsel. If I am wrong in holding that the complainant is entitled to the whole of the rent fund ($3,814.08), then she is entitled, of course, to one-half, and a serious question arises as to whether the administrator can be credited, as between him and the complainant, with the whole amount of the interest paid by him. In such case it seems to me that so much of the interest as accrued before the death of the husband should be paid out of his estate at large, and not out of any rents which accrued after the death of the husband. Those rents belong wholly, of course, to the wife, and she was not bound to pay more than one-half of the interest which accrued before his death. The remaining question in this cause is as to interest. With regard to the sum of $3,814.08, it appears that the husband held that money for a particular purpose, viz., to allow it to accumulate until there was enough to make a solid payment of $5,000 on the principal of the mortgage. There is no proof to show what benefit he derived from it. He did mingle it with his own funds, but upon the whole case, and considering that they were living together as husband and wife, and the husband was supporting his wife, I do not think it could have been contemplated between them that the husband should pay interest on that sum. I will advise a decree according to these views. 12 Seastream v. New Jersey Exhibition Co. 67 Eq. AUGUST SEASTREAM, CHARLES C. ALEXANDER et al., v. THE NEW JERSEY EXHIBITION COMPANY. [Decided July 22d, 1904. Filed December 23d, 1904.] 1. The proofs, on application for preliminary injunction against Sunday ball games as a nuisance, held to show facts as to disturbance from noises authorizing the relief. 2. Owners of land adjoining an enclosed ground, to which admission is charged to see ball games, are not estopped to seek injunction against Sunday ball games thereon as a nuisance because for several years before the enclosure persons taking possession of the grounds without let or hindrance played Sunday ball games in the presence of all choosing to look, and the same class of noises had been made, without attempt at relief against the same by such onlookers and persons alighting at the same place from electric cars and going for amusement to the river and the woods in the vicinity. 3. Any misjoinder in a suit for injunction against Sunday ball games as a nuisance because of some of the complaints alleging injury from the noises on the ball grounds and others from the noise of those in the street, may not be urged against a preliminary injunction, as this may be remedied later by requiring an election and striking from the record the names of complainants not affected by the kind of injury on which it is elected to rely. On bill to restrain a nuisance. On motion for preliminary injunction. Heard on bill and affidavits on the part of the complainants, and also on the part of the defendant. Mr. William II. Speer and Mr. Elmer W. Demarest, for the complainants. Mr. Robert S. Hudspeth, Mr. James P. Northrop and Mr. Peter Bentley, for the defendant. 1 Robbins. Seastream v. New Jersey Exhibition Co. PITNEY, V. C. The object of the bill is to restrain the playing of baseball games on Sunday on a plot of ground called the "Eastern League Park," situate in the westerly part of the city of Bayonne, in the county of Hudson. This park comprises the greater portion of three blocks situate between the Hudson Boulevard, on the west, and Avenue B, on the east, and West Forty-sixth street, on the south, and West Forty-ninth street, on the north. Fortyseventh and Forty-eighth streets, as laid out on paper, traverse the park, but are not open on the ground. The park is about four hundred feet wide and five hundred feet long, and is enclosed with a board fence about fourteen feet high. Avenue C is about seven hundred feet east of Avenue B, and the more densely built part of the city lies to the east of it. The complainants, of which, as the bill now stands, there are some twenty, own or occupy lands in the vicinity. Persons visiting this park reach it by a trolley line which connects the Pennsylvania ferry, in Jersey City, with the extreme south end of Bergen Point, on the banks of the Kill von Kull, and which is laid through Avenue C. Those persons alight from and board the cars in Avenue C, at the corners of Forty-ninth, Forty-eighth and Forty-seventh streets. The complaint of the complainants is twofold: First. That the advertisement of the baseball games brings large numbers of persons, running into the thousands, on such occasions into the locality by the trolley conveyances; that they alight in such congested numbers in Avenue C that the sidewalks and streets do not accommodate them, and that they do not hesitate to encroach upon the private grounds and trample the lawns of the residents of that neighborhood; that they make a great deal of noise and clatter and use vulgar and obscene language, not only in alighting from the trolley cars and going to the park, but also in returning therefrom and scrambling for seats for the return to the cities, and indulge generally in rough and boisterous and disorderly conduct. Second. That while viewing the ball games they become hilarious and excited, and shout and applaud in such a manner Seastream v. New Jersey Exhibition Co. 67 Eq. and to such a degree as to disturb the neighbors for a considerable distance therefrom. It is not alleged or shown by the affidavits that each of the complainants suffer from each of the two classes of annoyances, and hence it was urged at the argument that there had been a misjoinder. I shall refer to that later. As originally presented the bill was filed by August Seastream, who, with his family, occupied à house immediately adjoining the park on the northeast, and who, it is alleged, suffers from the noise of the spectators of the game, and by Charles C. Alexander, who lives on the corner of Avenue C and Forty-seventh street, over seven hundred feet away from the park, but immediately adjoining that part of the trolley line where the visitors to the park alight from and board the cars. He represents the persons annoyed by the first class of injury. The bill, however, in addition to naming the two persons just mentioned as complainants, declared that it was filed "on behalf of themselves and numerous other residents of said city, among whom are those whose affidavits are annexed to this bill of complaint." Several affidavits were so annexed, and on the presentation of this bill, on May 7th, 1904, an order to show cause, with interim restraint, was advised by me, returnable May 16th, with leave to complainants to procure and serve further affidavits. Further affidavits were made and served on both sides in great numbers and volume. On the return day, May 16th, the hearing was adjourned by consent until May 23d. On that day, after the hearing was reached and proceeded with, and additional affidavits had been read on the part of the complainants, counsel for defendant, being called upon to proceed on its part, arose and said that it was admitted by them that complainants' affidavits made out a prima facie case under the doctrine of Gilbough v. West Side Amusement Co., 64 N. J. Eq. (19 Dick.) 27, and Cronin v. Bloemecke, 58 N. J. Eq. (13 Dick.) 313, but that they had, not only a complete answer on the merits, but also a written request, directed to the solicitors of complainants and signed 1 Robbins. Seastream v. New Jersey Exhibition Co. by Messrs. Seastream and Alexander, requesting them to discontinue the suit. As the signatures to this paper were not verified by affidavits, I stated that I could act upon it only after notice to complainants; that its present effect rested entirely with the solicitors of complainants. They declined to act upon it, and immediately moved for, and, by consent, obtained, an order amending the bill by adding numerous other complainants by name. (The action of Mr. Alexander in signing the request to discontinue was afterwards explained by an affidavit made by him and filed by his counsel, and his desire was there expressed that the suit be continued.) The defendant then commenced the reading of its affidavits, which were continued on that day and May 26th. Among these affidavits was one of the complainant Seastream, contradicting all to which he had testified in his former affidavit annexed to the bill, which affidavit was, later on, met by counter affidavits on the part of the complainants. I then, on my own motion, took measures, which were heartily acquiesced in by counsel on both sides, to investigate the circumstances under which Seastream made the two conflicting affidavits. That investigation is still pending, but the complainants' counsel has not stricken his name from the list of complainants. I shall, however, disregard his affidavit in considering questions of fact. I think both classes of injury sufficiently established by the affidavits. The proof tends to show that some five or six of the complainants, who reside in the neighborhood of the park, have been disturbed by the noise of the shouts and applause from the grounds on the two Sundays when ball games had been played, to wit, on April 24th and May 1st, and several others of the complainants have suffered from the noise and unruly conduct of the great crowds alighting from and boarding the trolley cars in front of their residences and going to and from the park and the trolley. |