The opinion of the court was delivered by

The appeal is from an order entered July 3d, 1940, in the Court of Chancery dismissing the petition of the appellant seeking leave to pay money in a condemnation matter into the court pending an appeal from the award made by the commissioners. Before the order of dismissal was entered, the appellant had withdrawn the fund on its order entered on notice. There was, therefore, no res in court when the petition was dismissed. In equity it is the substance and not the form which controls. The appeal is palpably frivolous and will be dismissed.

*278 We have, however, carefully considered the merits of the case and if we were at liberty to affirm we should do so, for the reasons stated by Vice-Chancellor Bigelow in Housing Authority of Newark v. Ryan, 127 N. J. Eq. 482.

The appeal is dismissed, with costs.

For affirmance — Parker, Case, Donges, Wells, Woles-Keil, JJ. 5.

For dismissal — The Chiee-Justice, Bobine, Hehbr, Perskie, Porter, Dear, Raeeerty, Hague, JJ. 8.