49 Vroom. Beechwood Park Land Co. v. Summit. For the prosecutors, Atwood L. De Coster and Herbert Boggs. For the defendants, Corra N. Williams. The opinion of the court was delivered by PARKER, J. This writ of certiorari brings up for review certain proceedings of the municipal authorities of the city of Summit, for the opening and general improvement of a new street called Hawthorne place, especially as they bear on the taking of certain lands of the prosecutors lying within the lines of such street. The proceedings are regulated by sections 48 et seq. of "An act relating to and providing for the government of cities of this state containing a population of less than twelve thousand inhabitants." Pamph. L. 1899, pp. 96, 118. The procedure is for the common council to give notice by advertisement of their intention to make the improvement contemplated, with an opportunity for objection by persons interested, after which the council may pass an ordinance providing for such improvement, and thereafter may act by resolution. When land is to be taken and the council cannot agree with the owner as to price, the council, by section 52, is to make written application to the board of city assessors, to estimate and assess the damages of the owner by reason of the taking of his land, "which application shall specify the improvement and the land or other real estate with the appurtenances intended to be taken for such purpose." In the present case the city engineer was directed to prepare plans and specifications for the "opening, grading, macadamizing, guttering and laying of a four foot cement sidewalk and otherwise improving a new street," &c. Notice of intention was duly published and followed by the introduction of the ordinance, whose title specified that it was "to open, grade, macadamize and otherwise improve" the new street. The application to the board of city assessors was couched in the form of a resolution, reciting that the council Beechwood Park Land Co. v. Summit. 78 N. J. L. had determined to take the lands and real estate necessary to be taken, and could not agree with the owners, and calling on the assessors to make an estimate and assessment of the damages sustained by the owners of the lands and real estate necessary to be taken, &c. The first three reasons urged by prosecutors challenge the inclusion in one notice and ordinance of the opening and one or more forms of improvement. The accepted rule seems to be that the inclusion in one proceeding of two or more improvements is illegal, but we are not prepared to say that the opening and working of a new street constitute more than one improvement. We think the rule refers to improvements in more than one street, as in Church v. People, 179 Ill. 205, and People v. Latham, 203 Id. 9, and not as in the present case to a single scheme of improvement embracing the opening and adapting for public use of a new street. We are not disposed to set aside either the notice or the ordinance on this ground. It is next objected that the ordinance is vague and uncertain in failing to specify the particulars of material and work. The ordinance specified that the work is to be done in accordance with a survey and map filed in the city engineer's office. It calls for grading, macadamizing and eight-foot sidewalks paved with cement four feet wide, and gutters paved with cobble stone. This sufficiently indicates the nature of the improvements, and the details are properly left to specifications that may be afterwards adopted by resolution. The next objection, that the second reading of the ordinance was by title, 'is without force if the title sufficiently discloses its object. Anderson v. Camden, 29 Vroom 515. We think the title fairly discloses the object of the ordinance. It is said that neither the taking of land nor the intent to. assess is indicated by this title. But the opening of a street necessarily implies the taking of land for the purpose, if necessary, and from this as well as from the working of the street, an assessment naturally is to be expected. The sixth reason is that the common council has not ted with the owner or owners of the land to be taken, 49 Vroom. Beechwood Park Land Co. v. Summit. and has not attempted in any way to agree with said owner or owners as to the price thereof. Under this the prosecutors attack the resolution of May 5th calling on the assessors for a valuation of the lands necessary to be taken for the opening of the street in question, in which are included the lands of prosecutors. We think the point is well taken. It is conceded that no negotiation was had or attempted, and the evidence shows that prosecutors were both accessible and ready and willing to negotiate. If, therefore, their land was intended to be taken, there is no excuse for not endeavoring to agree on the price. The proceeding is a condemnation and should be strictly pursued. The answer of the city is that it is not obliged nor does it intend to pay for the prosecutors' land because it has already been dedicated for the purpose of the street in question, but this does not help the matter. The city says by its request to the board of assessors that it intends to take the lands necessary to be taken for the opening of the street, and asks them to appraise their value. This being in form a determination to condemn lands of prosecutors, they are entitled to resist it as not founded on any attempt to agree as to price, and the city cannot be heard to say in the same breath that it proposes to take their lands and pay for them, and is excused from negotiating because they are dedicated. If dedicated, condemnation is needless. If not dedicated, proceedings to condemn must be prefaced by an attempt to agree. The resolution of May 5th, 1908, embodying a request to the board of assessors to appraise the damages for taking of land so far as it affects the prosecutors, will be set aside, with costs. UNIS Q. HOLCOMBE ET AL. v. JAMES L. GRIGGS, EXECUTOR OF MARY E. HOLCOMBE, DECEASED. Argued February 18, 1909-Decided June 7, 1909. The declaration alleged in substance that plaintiffs, who were heirs-atlaw and next of kin of a decedent, were cut off by her will, and before it was offered for probate "evidenced their intention" of contesting it, and that the defendant's testator, then living, thereupon promised to leave them her estate if they would refrain from filing a caveat and permit the will to be probated, to which they agreed and which agreement they carried out by permitting the probate of the will. Afterwards the defendant's testator died without leaving her property as agreed. Held, that the declaration sets up a good cause of action for damages against the estate of the party who made the promise. On demurrer to declaration. Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER. For the plaintiffs, McDermott & Enright. For the defendant, Hugh K. Gaston. The opinion of the court was delivered by PARKER, J. The plaintiffs are children of Oscar V. Holcombe, who was a son of Lucilla A. Holcombe, deceased, and as such represented their father as heirs-at-law of said Lucilla. The defendant is executor of Mary E. Holcombe, who was a sister of Oscar V. Holcombe and who survived her mother, Lucilla. Oscar, however, predeceased his mother. The declaration sets forth that after the death of Lucilla A. Holcombe, who died seized of an estate of several thousand dollars, a document purporting to be her last will and testament gave by its terms to Mary E. Holcombe all her silverware, horses, cattle, phaton, carriage and harness, and all household and kitchen utensils and the books contained in her library, and to her son, John W. Holcombe, and to said Mary E. Holcombe the farm in Franklin township, on which she resided, share and share alike; these two provisions carrying the bulk of her estate. The declaration goes on to say "that subsequent to the death of said Lucilla A. Holcombe and prior to the probate of said document as her will, the plaintiffs herein, well believing that the aforesaid alleged will had been procured by undue influence and that the testatrix at the time of the execution thereof was of unsound mind and without testamentary capacity, and that the alleged will was void and not in fact the last will and testament of the deceased, did evidence their intention to oppose the probate thereof and to file caveats against the same. That thereupon a family settlement was agreed upon and the said Mary E. Holcombe and the said plaintiffs did mutually agree by way of family settlement of the estate of said deceased that if the said plaintiffs would refrain from contesting said will and would permit the same to go to probate and permit the property of the deceased to pass thereunder and abandon their claims thereto as heirs-at-law and next of kin of the deceased, then that the said Mary E. Holcombe would by her last will and testament devise and bequeath all of her property, real and personal, of which she should die seized and possessed, over and above the amount necessary to pay her debts, unto the plaintiffs herein, share and share alike." It goes on to say that the plaintiffs, relying on said promise and in consideration thereof, refrained from contesting the probate of said will and did permit the same to go to probate and abandoned their claims as heirs-at-law and next of kin, and that the will was afterwards probated and letters testamentary issued thereon, and that Mary E. Holcombe received and enjoyed the property left to her thereby; that afterwards Mary E. Holcombe died at Somerville, leaving personal property of the value of $5,000 and upwards above her debts, and that she failed to carry out her promise to devise and bequeath all her property to the plaintiffs, but on the contrary |