Allen v. Aylesworth. answer and at the hearing defendants rely on additional reasonsfor discharge; these being delay in getting to work and directions to employes, at several times, prejudicial to their interests. Such reasons, if sufficient, may be relied on even if not known at the time. Sm. Mast. & S. *150, 151. The first charge, that of opening the office desk and examining books or papers of defendants without their knowledge, is satisfactorily made out on the evidence, and such examination is not denied by complainant. He denies that he opened the top of the desk, but says that he opened a drawer of the desk in which the shipping-book was at the noon hour, and his present explanation is that he looked at it because Jackson had told him. a day or two before that business was falling off and he must lay off Carpenter, the brother-in-law of Allen, who was assisting him, and he went to the books in his employers' absence to find out what they were shipping. The examination was made under circumstances which justify the conclusion that complainant intended to make secret examination of the book, and without observation either of the employers or of any other employe. Allen's employment was in the manufacture of the articles, and in the course of his duty it does not appear that he had any occasion or right to examine any of the books of defendants, nor does he claim the right to examine the books he did examine. Without going into the evidence in detail, or examining the other questions in the cause, my conclusion is that a good and sufficient cause of discharge from their employment existed by reason of this opening of the desk or of one of its drawers, and the examination of the books therein. This conduct of complainant was, in my judgment, such a breach of the implied condition of faithful service as entitled the employer to rescind the contract of employment. It was a breach of an employe's duty that went to the whole consideration of the employment and was of such a character that the employer was not bound to run any risk of its repetition by the retention of the employe. The books and papers of an employer must, in the conduct of his business, be often necessarily exposed or kept so as to make secret examination possible by a dishonest or inquisitive employe, whose Allen v. Aylesworth. employment is not connected in any way with the books; and where an employe so far loses his honesty or self-restraint as to examine his employer's books to which he has no right of access in his employment, this act, in my judgment, gives the employer a right to discharge the employe and terminate the contract of employment, and if the employer in good faith exercises the right to discharge for this reason, it is not for the court to say that the employer must give the employe another trial, or run any risk of the repetition of the offence. Such repetition, if made after notice of the offence to the employer, would occur at his sole risk, and where he acts in good faith the employer is entitled, in my judgment, to decide the question of retention for himself. ques The evidence does not, in my opinion, disclose any such want of good faith. The fact that an additional reason for discharge -that of refusal to obey orders-was given, and that a fair tion is raised on the evidence as to whether this refusal was not anticipated and brought about by the employers for the purpose of giving them an additional reason for discharge, is not sufficient to show that they did not act in good faith in discharging for the misconduct in secretly examining their books or papers. I hold, therefore, this ground of discharge sufficient, and the complainant, if the terms of the agreement are to control, is not entitled to the securities. It is urged, however, by complainant's counsel, that even if, by the strict terms of the agreement, the securities are to be so paid over to defendant, yet the agreement for such payment, in effect, produces a forfeiture of money or securities which belonged to complainant, and that it cannot be enforced in equity, and that the money must be returned to complainant, leaving him to answer to defendants in damages. But there is no sufficient basis for finding that this money so advanced by defendants, on the faith of this agreement, was complainant's money, put up by way of forfeiture or penalty. The contract was a special one, including several considerations, viz., the termination of an existing contract between the parties, for an interest in previous profits the settlement between them without further account Johnston v. Belmar. ing-payment of $300 by defendants to complainant—the employment of complainant for over two years at good wages and ultimate payment of $1,000 in addition for faithful services, together with a right to this sum at once, on discharge without cause, and the defendants were to deposit this sum or its equivalent with a trustee, at once, and from their own money so far as the contract shows. The contract itself shows that defendants' supplying the money for the purchase was based upon substantial considerations agreed upon between the parties, other than their owing it to complainant as the result of a settlement on accounting, and complainant's parol evidence that this was the source of the money is not sufficient to change the disposition of the money provided by the written contract or to entitle him to claim it as a deposit of his money made by way of security. The contract, in its circumstances and terms, differs from those which are usually designated as fixing "forfeitures" within equitable control, and I have not been referred to any case by counsel which, in my judgment, supports the present contention. I conclude that it is a case of enforcement of a written contract in which a court of equity must adhere to the contract the parties have themselves made as to the disposition of the money. The bill will therefore be dismissed. ROBERT S. JOHNSTON บ. THE BOROUGH OF BELMAR. [Filed August 31st, 1899.] 1. Under act of 1888, chapter 56 (Gen. Stat. p. 1642), giving boards of health the right to regulate plumbing of buildings and to require plans to be submitted for their approval, where a plan submitted to the board has been approved, either as submitted or with alterations, the owner, if he proceeds with the work, must conform to the plans as approved. Johnston v. Belmar. 2. Under act of 1888, chapter 56 (Gen. Stat. p. 1642), giving boards of health the right to regulate plumbing of buildings and to require plans to be submitted for their approval, where the borough supplies the water for the public, a board of health has no authority to control directly the turning on of the water for permanent use by private consumers or to cut it off when once so turned on. 3. Though the control of the public water-supply, and the sole right to turn it on and cut it off, is in the borough council, it has no right to cut off the water-supply from a private consumer on account of his failure to comply with the ordinances of the board of health respecting plumbing, in the absence of any regulation authorizing the cutting off the supply as a penalty for such violation. 4. Where the issue in a suit to restrain a city from cutting off the watersupply of plaintiff is one of law as to the rights of the parties, and is fully presented on the preliminary application, and no sufficient reason appears for delaying decision on the question until final hearing, a preliminary injunction will be granted. On application for preliminary injunction against cutting off water-supply. Mr. Samuel A. Patterson, for the complainant. Mr. Halsted H. Wainright, for the defendant. EMERY, V. C. The board of health of the borough, under the act of February 22d, 1888, chapter 56 (Gen. Stat. p. 1642), have the right to regulate the plumbing of buildings and to require plans to be submitted for their inspection and approval. Where a plan has been submitted by an owner to the board, and the plan so submitted has been approved, either as submitted or with alterations, the owner, if he proceeds with the work, must conform to the plans as approved. If the owner desires to question either the failure to approve his plans or the conditions as unreasonable, he must do so by appeal to the courts before proceeding with the work. Otherwise, he is bound in justice, as well as by the ordinance of the board of health, to follow the plans as approved. Morford v. Board of Health, 32 Vr. 386 (Supreme Court, 1898), p. 390, citing Health Department v. Lalor, 38 Johnston v. Belmar. Hun 542. The answer does not set up that the owner's planswere not approved or that he is not following the plans which were approved originally, but claims the right to cut off the water-supply solely because of the failure of the owner to comply with the ordinances of the board of health in relation to open plumbing. For violation of the ordinances of the board of health, the owner is, by the statute, made subject to penalties on prosecution of the board of health, but the board of health have no authority under the statute either to control directly the turning on the water for permanent use, or to cut off the water when once so turned on, by reason of violation of their ordinances. Such control would subject the owner to an additional penalty. The control of the public water-supply and the sole right to turn it on and to cut it off is in the borough council, and in the absence of any regulation by the borough council itself, that water shall not be turned on until a certificate from the board of health has been obtained, that the plumbing conforms to their ordinances or plans, or that it shall be cut off after it has been turned on, by reason of failure to comply with the ordinances of the board of health, the borough council has no right to cut off the water-supply from an owner by reason of this failure. Its right to cut off the water must depend upon its own reasonable regulations in this respect. Morford v. Board of Health, supra; Dayton v. Quigley, 2 Stew. Eq. 77 (Chancellor Runyon, 1878); Coe v. Railway Co., 3 Stew. Eq. 440 (1879); Red Star Steamship Co. v. Jersey City, 16 Vr. 246, 250 (Supreme Court, 1883). Complainant's conduct in originally interfering by force with the supply, as shown by defendant's affidavits, might be ground for refusing a preliminary injunction, if this forcible connection of the watersupply still continued at the filing of the bill, but the defendant having now resumed control of the supply, and complainant having now applied to the court for a declaration as to his rights, while the water is cut off, the existing rights of complainant should be determined without being prejudiced by his former forcible action. Complainant, as a taxpayer and owner of landsin the borough, is entitled to the common benefit of the water |