text:
    Emma T. Byrne, petitioner, v. John E. Byrne, defendant.
    [Decided July 21st, 1921.]
    1. Whenever a cause for action for divorce, whether for adultery or desertion, is destroyed by condonation or otherwise, the suit is not. because it cannot be, any longer pending lona fidej . it may be open and undismissed of record because of the inaction or neglect of the parties, but, the cause for action being gone, it can neither create nor continue a status depending on it.
    2. If a suit for divorce be commenced by one spouse against the other, and during its pendency the parties reunite and resume cohabitation and marital relations, the pending cause for divorce is destroyed through condonation of the offence pleaded therein, and, as that cause could not be further prosecuted, its remaining open and undismissed of record is not a bar to the running of the time of desertion pleaded in a subsequent suit for divorce between the same parties.
    3. In a suit for divorce, if the proofs show a willful, continued and obstinate desertion for two years next before the filing of the petition, the offence is complete, notwithstanding that a date earlier than the commencement of that period was alleged in the petition as the actual date upon Which the desertion commenced; but, desertion once commenced, must have been continued without interruption for the statutory period to entitle the petitioner to a decree.
    On final hearing ex parte on master’s report in divorce.

      Mr. Clarence L. Cole, for the petitioner.
   Walker, Chancellor.

This was a case for divorce for desertion. The defendant defaulted in pleading and the cause was referred in due course to a special master to ascertain and report as to the truth of the allegations of the petition and his opinion thereon. Depositions were taken before the master, wlm has returned them, together with his report. He found that the parties were married May 22d, 1910, and that the petitioner had the requisite residential status, and that the petitioner and defendant lived together as husband and wife until about June or July, 1916, when the husband instituted a suit in this court for divorce against the wife on the ground of adultery; that there is proof in this case that the defendant subsequently cohabited with the Avife in the summer of 1916, and again as late as April, 1917 ; that he then left her apparently without indicating an intention to desert, but that an intention to desert was formed in July, 1917, and thereafter continued willfully and obstinately for more than íavo years previous to the institution of this suit. The master then observed that in the suit for divorce brought by the husband for adultery the citation AA'as returned duly served and an answer filed by the wife denying the allegation of adultery, and also setting up condonation, in bar, and that the husband did nothing toward the further prosecution of the cause, which remains open and undismissed of record. Upon this state of facts the master reports that the husband’s petition for divorce in the previous suit was brought in good faith, and, therefore, he is constrained under the decisions in this state to report adversely to- granting a divorce to the petitioner in this suit upon the ground that none of the time occupied by the pendency of a prior bona fide suit for divorce between the parties can be counted as any part of the time of desertion relied upon for a divorce in the subsequent suit.

Defendant excepts to the report, filing six several and specific exceptions, when only one should have been filed. See McCauley v. McCauley, 88 N. J. Eq. 392.

In McLaughlin v. McLaughlin, 90 N. J. Eq. 322, I had occasion to examine the law of the pendency of a prior suit for divorce as affecting- the period of desertion in a subsequent one, and held that none of the time occupied by the former proceeding could be computed as part of the time of the desertion in the later cause provided the latter was bonat fide, reviewing earlier cases. In the Weigel and von Bermuth Cases, cited in the Me-. Laughlm Case, the decisions were that pendency of the former suits did not operate in bar because those suits were not brought in good faith. These cases, of course, were decided upon their own particular facts, and they, it appears, were brought in bad faith. There is nothing in them which militates against the view that if, having been brought in good faith, they at any time during their pendency ceased to be prosecuted, in good faith, that the same doctrine would not apply, namely, that thereafter — that is, after the cessation of the period of good faith, a cause for divorce would be regarded as no. longer pending, at least, not in such a way as. to bar the running of the time of desertion. And there is. nothing in the other eases cited in the McLaughlin, Case which militates against this view. It would be singular, indeed, as in the case before me, for example, if a husband could separate himself from his wife and bring suit against her for divorce for adultery, and then, pending that suit, reunite, cohabit and indulge in sexual intercourse with her, and thereafter further prosearte that suit. Of course, that could not be done. Beunition, renewed cohabitation and sexual intercourse would, of course, be a condonation of the offence charged, and would absolutely bar any prosecution for that cause of action, whether it were set up in the pending or a subsequent case.

Whenever a cause for action for divorce, whether for adultery or desertion, is destroyed by condonation or otherwise, the suit is not, because it cannot be, any longer pending bona fide. It may be open and untlismissed of record because of inaction or neglect of the parties, but the cause for action being gone, it can neither create nor continue a status depending, on it.

In Rinehart v. Rinehart, 91 N. J. Eq. 355, a prior suit for divorce, open and undismissed of record, confronted the petitioner in a later case, and I observed (at p. 356) that if the former suit had been pending bona fide, since the filing of the instant petition, the divorce praj^ed for in that second cause would have to be denied. The fact was that in the first cause only a petition has been filed, and the defendant had not been brought into court to answer it. And I further held that it could not be said with reason that a case was pending bona fide against a defendant who had not been brought into court to defend it. See alsoi my remarks, when, vice-chancellor, in Eardley v. Eardley, quoted in Rinehart v. Rinehart (at p. 358).

In Drayton v. Drayton, 54 N. J. Eq. 298, cited in the McLaughlin Case, it was distinctly held that if a suit for divorce for adultery be brought in good faith and prosecuted with diligence, the time consumed by it -will not be computed as part of the statutory period necessary to the desertion which will authorize a divorce. Here is a clear intimation that if a divorce suit be not prosecuted with diligence it will not bar the time of desertion pleaded in a subsequent suit. And Chancellor McGill says in the opinion (at p. 302) that during the time consumed by a suit for divorce the law does not require the parties to cohabit together. Certainly it does not, and it does no' more than that. Of course, it permits them to cohabit together pending such a suit, as it favors marriage and disfavors divorce. The effect of such cohabitation, as I pointed out above, is to destroy the cause for action in the then pending suit.

The views above expressed lead to the conclusion that if a suit for divorce be commenced by one spouse against the other, and during its pendency the parties reunite and resume cohabitation and marital relations, the pending cause for divorce is destroyed through condonation of the offence .pleaded therein, and, as that cause could not be further prosecuted, its remaining open and undismissed of record is not a baa to the running of the time of desertion pleaded in a subsequent suit for divorce between the same parties.

The prior suit between: these parties was ended by condonation of the wife’s offence, if she were guilty (which does not appear), by reason of their reunition, resumption of cohabitation and marital relations as late as April, 1917. The petition in this case was filed November 11th, 1920, and while it alleges desertion to have taken place in the month of April, 1915, ever since which time and for more than two years then last past it willfully, continuedly and obstinately persisted, the proofs show that it certainly commenced in July, 1917, which was more than the required statutory period before the filing of the petition, and the ¡petitioner is entitled to a divorce, notwithstanding that desertion has not been proved during the whole period alleged in the petition; for, if the proofs show a willful, continued and obstinate desertion for two years next before the filing of the petition, the offence is complete and a decree should be granted. Drayton v. Drayton, supra (at p. 300); Carroll v. Carroll, 68 N. J. Eq. 724; Foote v. Foote, 71 N. J. Eq. 273, 279. See, also, Grady v. Grady, 64 Atl. Rep. 440.

In the Carroll Case the petition (as disclosed by the record) was filed May 1-lth, 1903, and alleged that the defendant deserted the petitioner on May 4th, 1893, ten years previous. The special master reported that the defendant deserted the petitioner during the latter part of the month of November, 1894. Chancellor Magie, reviewing the master’s report in a filed but unreported memorandum, queried as to the period when the defendant’s absence became a desertion of the petitioner. This shows that he had no notion that it had to be tied absolutely to the precise date alleged in the petition. The chancellor then went on to observe that he did not think that the evidence established a desertion for the statutory period and dismissed the petition. The petitioner appealed and the court of errors and appeals reversed the decree in chancery and granted a divorce, observing (at p. 727) that it is not necessary to begin a desertion that the deserter intend to desert at the time he leaves his home; tha.t if the proof shows that he at any time while absent determined that from thenceforth- he would, desert his wife, and that determination is persisted in willfully, continuedly and obstinately for the statutory period, that will constitute desertion for the required time. This case (Carroll v. Carroll) was cited with approval in Foote v. Foote (at p. 279). The pleadings in the Foote Case (as air examination of the record discloses) do not present as clear-cut a, case as that of Carroll on the question under discussion, for in the Foote Case the allegation in the petition is that the defendant in or about June, 1892, went away with the consent of the petitioner and was to- send for her, which he did not do-, and the averment is, that for more than two year's then last past he had willfully, continuedly and obstinately deserted her. Vice-Chancellor Stevenson refused a decree. The court of errors and appeals, at the bottom o-f p. 278, observed that after a long silence the defendant, in September, 1893, returned to his mother’s house, but not to his wife (who lived in the same town), nor had he ever returned to her or offered to resume marital relations or provide for her; that this conduct is what constituted the actual desertion of the complainant; that when the intention to desert became fixed in the mind of the defendant, the complainant was unable to s-a]1, but his actions and the corroborative circumstances left no do-ub-t that such a determination was reached long prior to the two years before the filing of the petition.

There is no conflict between this doctrine and that enunciated in Orens v. Orens, 88 N. J. Eq. 29, to the effect that a desertion once commenced must be shown to have continued without interruption, for otherwise a complete reconciliation and reunition of the parties might take place during the interruption, which would entirely destroy any right t-o- a divorce arising out of the previous: desertion. See, also, Myles v. Myles, 77 N. J. Eq. 265.

The prior suit between these parties-, assuming guilt (which was not proved.), ceased 'to be pending bona /lele after the condo-nation above referred to, which was more than two years prior to the filing of the petition in this cause, and, therefore, the prior suit is no impediment to the prosecution of the present one — that is, the time during which the prior suit has remained open and undimiissed of record after it ceased to be pending bona fide, is no bar to the running of the time of desertion pleaded and proved in the present suit; and the petitioner is entitled to a divorce in this cause.

Decree nisi accordingly.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Elizabeth Csanyi, petitioner, v. Stephen Csanyi, defendant.
    [Decided July 30th, 1921.]
    1. A constructive desertion is one where an existing' cohabitation of the parties is put an end to by misconduct of one of them, provided such misconduct is itself a ground of divorce a, vinculo or a mensa; and it is not a necessary ingredient in constructive desertion that the husband shall entertain, in connection with his acts of cruelty, any settled purpose to drive his wife from him; it is enough if such is the natural consequence of his acts.
    2. After years of extreme cruelty by the defendant toward the petitioner, he, on the night of Januai'y 19th, 1918, came home drunk and ordered her to become a domestic servant, so as to earn money for him, which she declined to do, saying that she had never been out at service but would work in a factory; whereupon he struck her and she ran away to save herself, falling downstairs and sustaining injury; 'she managed, however, to go immediately thereafter to a justice of the peace and swore out a warrant for her husband’s arrest; the justice sent an officer back to the house with her, who admonished her husband not to molest her again, and he appears not to have done so; that night (the only one in which she thereafter remained under the same roof with him), she slept apart from him; early the next morning defendant was arrested upon the warrant isssued on his wife’s complaint and lodged in jail; he was indicted, tried and convicted and sentenced to a term in the state prison, which he served; his incarceration from the time of his arrest to the time of his discharge from prison being twenty months; the separation thus brought about was a constructive desertion of the petitioner by the defendant, commencing at the time she fled from the assault and battery; the separation, thus occasioned, at the expiration of two years after its commencement, ripened into fi cause for divorce for constructive desertion, notwithstanding that during a portion of such time the defendant was restrained of his liberty by being incarcerated in prison; and this in virtue of the provisions of the Divorce act (Revision of 1907), section 31.
    3. After separation caused by the cruel conduct of a husband, it is his duty to reform his habits, manifest his reformation, seek out his wife and apply for restoration of marital relationship, giving her reasonable assurance of his sincerity and her probable safety in resuming cohabitation with him; this the defendant did not do, and his desertion, therefore, persisted.
    4. Section 31 of the Divorce act (Revision of 1907), which provides that willful and obstinate desertion shall be regarded and held to be continued within the meaning of that act, notwithstanding that after such desertion is begun the deserting party shall be imprisoned, &e., construed and applied. <
    5. Wolf v. Wolf, 38 N. J. Bq. 128, and Hyland v. Hyland, 55 N. J. Bq. 35, distinguished.
    6. On the facts of this case — Held, that the wife is entitled to a divorce for the husband’s desertion.
    On final hearing ex parte on master’s, report in divorce.

      Mr. William Reich, for the petitioner.
   Walker, Chancellor.

This is a suit for divorce for desertion. The defendant did not answer and the case was referred to a special master who took depositions and filed an adverse report. The petitioner excepts, filing three several exceptions when only one should have been filed. See McCauley v. McCauley, 88 N. J. Eq. 392; also Byrne v. Byrne, 93 N. J. Eq. 5. A proper exception may be spelled out of the third and last one pleaded by the petitioner.

The petition in this case alleges constructive desertion, counting upon extreme cruelty, which is abundantly proved. For a better understanding of tire decision arrived at it is proper to state succinctly when and how the separation of these parties came about. They were married in 1910, and for years the defendant was extremely cruel to the petitioner, often beating her, cursing her and calling her a whore, &c. On the night of January 19th, 1918, the defendant came home drunk and ordered his wife to become a domestic servant so as to earn money for bim, which she declined to do, saying she had never been out at service but would work in a factory. Whereupon defendant struck petitioner and she ran out to save herself, falling downstairs and sustaining injuries from which she was still suffering at the time of the taking of the testimony. She managed, however, to go immediately thereafter to a justice of the peace and swear out a warrant for her husband’s arrest. The justice sent an officer back to the house with her, who admonished her husband not to molest her again, and he appears not to have done so, probably through fear of the law. That night (the last she spent under the same roof with her husband) she slept apart from him. Early the next morning he was arrested upon the warrant issued on his wife’s complaint and lodged in the Middlesex county jail. He was indicted, tried, convicted by a, jury and sentenced to a term in the state prison, which he served, his incarceration from the time of his arrest to the time of his discharge from; prison being twenty months. The separation thus brought about was a constructive desertion of the petitioner by the defendant, commencing at the time she fled from the assault and battery. ■

The master’reported that the desertion was not a constructive one; that the petitioner would have been justified in leaving the defendant, but that she did not do. so- by any act of hers; and that the law of New Jersey does not permit the time a defendant is confined in a penal institution to be considered as part of the time of a willful, continued and obstinate desertion if the petitioner had not left the defendant at the time of-his incarceration.

A constructive desertion is one where an, existing cohabitation of the parties is put an end to by misconduct of one of them, provided such misconduct is itself a ground of divorce a vinculo or a mensa. Bid. N. J. Div. Prac. (2d. ed.) 79, and cases cited. It is not a necessary ingredient in constructive desertion that the husband shall entertain in connection with his acts of cruelty any settled purpose to drive his wife from him. It is enough if such is the natural consequence of his acts. McVickar v. McVickar, 46. N. J. Eq. 490, 493. Of course, this wife would have been entirely justified, as the master says, in leaving the defendant and never returning to him. She might, on the night of the last assault and batter}', after leaving the house, gone to some other place and there remained away from him, and he would, unquestionably, have been the des.erter. She did not, however, have to do that. She had a right to- return to her home, and it was her duty to do- so, where two sons, the younger aged three years, remained with her drunken and vicious husband. As already stated, she slept apart from ner husband that night, and he was arrested and taken away early the next day. In my opinion, a constructive desertion of the petitioner by the defendant occurred at the time of his assault and battery upon her on the night before his arrest. The wife is not to be blamed, but commended, for invoking the process of the law against her brutal husband. Her swearing out the warrant for him was intended by her to cause his incarceration for her protection. It was legally the equivalent, of her separating herself from him without having him arrested.

Desertion can exist while'the spouses are living in the same house. See Rector v. Rector, 78 N. J. Eq. 386. In that case, Vice-Chancellor Garrison pertinently remarks (at p. 407) that when spouses are merely living under the same roof in the same relationship that could exist between a man and his housekeeper, or a woman and her boarder, a. condition in which the fact that she is the wife and he is the husband is of no consequence whatever in their relationship- and method of living together, desertion exists, and the one who has caused the situation .against the will of the other is the offender.

Now, we have an act oE the legislature continuing a desertion, already begun, while the 'offender is in prison. In Porter v. Porter, 82 N. J. Eq. 400, I had occasion to construe that statute, being section 31 of the Divorce act (Revision of 1907). It provides that willful and obstinate desertion shall be regarded and held to- be continued within the meaning of that act, notwithstanding that after such desertion is begun the deserting party shall be imprisoned, &c., and I held (at p. 403) that the very object oE this section is to make a desertion thereby continued, both willful and obstinate, during its continuance. Otherwise, there would appear to be no occasion for the act. A desertion would necessarily be physically continued during the period of the defendant’s imprisonment, and, as we know, not only must the desertion continue, but also- be willful and obstinate during the period of continuity to enable the offended spouse to obtain a divorce. Therefore, it is. that the legislature intended that that which would be continued during imprisonment was the willful and obstinate character of the desertion. 'It seems to me that this is obvious. A willful and obstinate desertion is the kind of desertion that is continued by the very terms of the act. Unless this be so, as already remarked, tire- act would be apparently purposeless.

Section 31 of the Divorce act (Revision of 1907) does .not prescribe that any length of time must elapse prior to the imprisonment of the defendant after an actual or constructive desertion has commenced, in order to make its provision operative against him; only that the desertion shall have begun. The more or less actual separation in this case, which, amounted to constructive desertion, had begun about ten hours before the arrest and incarceration of the defendant. It might have been for much less time and still have constituted desertion. An analogy may be drawn from the time required to premeditate and deliberately commit a murder. The Crimes act (Comp. Stat. p. 1780 § 107) provides, inter alia, that willful, deliberate and premeditated killing shall be murder in the first degree. “By ‘deliberately’ and ‘premeditation,’ however, the law does not mean any particular length of time need intervene between the formation of the purpose to kill and its execution. It is not necessary that the deliberation and premeditation shall continue for a day, or an hour, or a minute. It is enough that the design to kill be fully and clearly conceived in the mind and purposely and deliberately executed.” State v. Zdanowicz, 69 N. J. Law 619 (at p. 626). The intention to desert, like the design to kill, necessarily takes some appreciable time in its conception. I make no doubt that if a husband brutally assaults his_wife, and immediately after the attack she causes his arrest for her protection, that she may treat the separation so caused as a constructive desertion on the husband’s part, commencing from the time of the assault. Whether she would succeed in her suit would, of-course, depend upon all the facts of the case; what I say is, that the separation thus caused would be a sufficient commencement of the desertion.

The case of Wolf v. Wolf, 38 N. J. Eq. 128 (Chancellor Runyon, 1884.), in which it was held that willful and obstinate desertion did not continue through a term of imprisonment, is clearly to be distinguished from the case at bar, because at the time of the Wolf Case there was no statute making such desertion, already begun, continued through a period of imprisonment;’ and the ease of Hyland v. Hyland (Chancellor McGill, 1896), 56 N. J. Eq. 35, is also to be distinguished from the case at bar, in that the act of April 1st, 1887, which was in force when that case was decided, only permitted the tacking together of two periods of desertion, one before defendant’s imprisonment and the other after his discharge, so as to afford ground for divorce.

The supplement to the Divorce act of April 1st, 1887 (Gen. Stat. p. 1273 § 37), which was in force when Chancellor McGill wrote the opinion in the Hyland Case, was expressly repealed in the act to repeal sundry statutes (P. L. 1902 p. 268); but had it not been, it would have been repealed by implication by the Divorce act- (Revision of 1902), because the Revision of 1902 covered the whole subject of statutory divorce law, and while it did not contain an express repealer, yet section- 25 of that Revision, now section 31 of the present Divorce act (Revision of 1907), is repugnant to the act of April 1st, 1887, and repeal was thereby worked. See Mersereau v. Mersereau. Co., 51 N. J. Eq. 382

After the separation caused by the cruel conduct of the husband, it is his duty to reform <his habits, seek out his wife and apply for restoration of the marital relationship1, giving her reasonable assurance of his sincerity and her probable safety in resuming cohabitation with him. See Lister v. Lister, 65 N. J. Eq. 109; Jerolaman v. Jerolaman, 54 Atl. Rep. 166. He must manifest his reformation. McVickar v. McVickar, supra. It appears that the defendant in the case before me wrote his. wife two letters while in prison, the contents of which were not brought out in the evidence, and after he was released he sought her out, but she evaded him. Failing to secure an interview with her, he afterwards wrote her that if she did not live with him again lie was going to kill her. 'Therefore, not only does it not appear that he had reformed and given her reasonable assurance of the sincerity of his reformation, or manifested to her that it waó probably safe for her to resume marital relations with him, hut his last eommuni cation to her was one that would give her to be informed that he was the same vicious criminal that he had been, and that not only her health but her life would be in danger by resuming cohabitation with him, notwithstanding that the letters to her from prison may have expressed contrition, asked forgiveness .and pleaded for restoration of marital relations., which is assumed, in the absence of proof to the contrary.

The result reached is, that the exception must be sustained, to the end that a decree nisi may be granted.


text:
    Ferdinand J. Verbeeck, petitioner, v. Joanna Verbeeck, defendant.
    [Decided August 1st, 1921.]
    1. The power to appoint a solicitor on behalf of a defendant wife in a divorce suit carries with it an implication of power to compel compensation of that solicitor by the husband.
    2. Suit money, as such, dissociated from alimony, is allowed in proper cases.
    8. The wife in a divorce case is entitled to an allowance to enable her to take depositions on commission in proper circumstances.
    4. If a wife has sufficient separate property, the reason for giving her either temporary alimony or money to defray her expenses in a divorce suit does not exist, and she is not entitled to either.
    5. When husbands leave their wives in European countries and come here, and, after the requisite lapse of time, sue for divorce alleging desertion in their' old countries, this court will see to it that the wives are defended at the husbands' expense, and that their suits are stayed until they provide means ample for the purpose, at least, in all cases in which the wives desire to interpose defence.

      O. When wives have stayed in Europe for years after their husbands have emigrated here, and have existed there by their own exertions, or otherwise, alimony pendente life ought to be withheld from them on the ground of laches, if for no other reason.
    On application by defendant for suit money, &c.

      Mr. Henry Marelli, for the defendant.

      Mr. -Jacob Van Her Clock-, for the petitioner.
   Walker, Chancellor.

On October 19th, 1920, Ferdinand J. Verbeeck, a residenc of this state, filed a petition for divorce from his wife, Joanna H. Verbeeck, alleging that they were married on October 19th, 1908, in Belgium; that the defendant, on certain dates in 1915, committed adultery at Antwerpen, Hoboken, Belgium; that no children were born of the marriage; and praying for a divorce according- to the statute. The defendant being notified of the pendency of his suit by publication and mailing, and not having answered within the time allowed by law, the cause was in due course referred to a special master by order filed January 17th, 1921, who, the special master, took depositions and reported that all the material facts charged in the petition were true and that a decree of divorce should be made for the cause of adultery. This report was filed February 1st, 1921. On February 15th, 1921, no decree nisi- having been entered, an answer to the petition, written in French, was received through the mail from the defendant. Being translated it shows that the defendant avers tliat she had been for several years deserted by the petitioner; that she had a child by him born before their marriage, viz., April 13th, 1906, which had been acknowledged by him, as appears by the civil records of Hoboken and on the marriage certificate of the parties, an extract from which is attached to the answer. While the defendant does not in terms deny, she, nevertheless, inferentially denies the charge of adultery, saying that she is “an unhappy and deserted wife against whom no wrongdoing can he charged,” and she prays that the petition be dismissed and that her husband be compelled to pay all costs and provide for the support of herself and of their child “legitimated by him.” The loose manner of pleading in the answer is doubtless due to defendant’s unfamiliarity with our requirements. She is entitled to defend, notwithstanding the belated answer. See Grant v. Grant, 84 N. J. Eq. 81.

Upon receipt of defendant’s answer it was filed together with the translation, and an order was made which recited that the court deeming it proper to appoint a disinterested solicitor to, actively defend the cause, it was ordered that’ Henry Marelli, esquire, one of the solicitors of this court, be assigned for that purpose; and it was further ordered that the defendant might apply for suit money and for alimony anci counsel fee pendente lite. This order was filed March 8th, 1921. In pursuance of the leave thus given, counsel for defendant applied for allowances, and the matter has been heard in the presence of counsel for both parties.

In Johns v. Johns, 87 Atl. Rep. 119, I, when vice-chancellor, assigned counsel to defend an ex parte divorce suit, and, upon the conclusion of the hearing, I filed a memorandum directing the solicitor for the defendant to enter a decree of dismissal, with costs, against the petitioner, including a counsel fee; and I observed that the power to appoint a solicitor on behalf of a defendant conferred on the court by section 18 of the Divorce act (P. L. 1907 p. 480), canned with it, I thought, an implication of power to compel compensation of that solicitor by the husband, but whether so or not, section 91 of the Chancery act, amended April 11th, 1910 (P. L. 1910 p. 427), undoubtedly gives that power. From the decree of -dismissal, entered in pursuance of this memorandum, which provided for the payment of costs and counsel fee just mentioned, an appeal’ was taken to the court of errors and appeals from the whole and every part thereof.' This decree was affirmed in a per curiam. Johns v. Johns, 80 N. J. Eq. 257. The affirmance was for the reasons stated in the opinion (memorandum) filled by ape in this court, but that was inadvertently never reported. The remittitur, which was filed in this court September 16th, 1912, orders and adjudges that the decree appealed from be in all things affirmed. Therefore, the view expressed by me that a fee may be awarded to counsel assigned to actively defend on behalf of the defendant in an ax parte divorce, to be paid by the petitioner, has the sanction of the court of errors and appeals and is established law.

Suit money, as such, and dissociated from alimony, is allowed in proper cases. In Oram v. Oram, 77 N. J. Eq. 1, it was held that in the circumstances of that case the wife was entitled to an allowance pandante lite for the expenses of her suit to establish marriage. In Maim v. Main, 50 N. J. Eq. 712, it was held that where defendant was required by the court, on the election of the petitioner, to come from a distant state and be present at the trial for the purpose of identification, the reasonable hotel expenses of defendant and an important witness accompanying her, and defendant’s dining and sleeping car expenses, are properly chargeable to petitioner, in addition to her car fare, although she had means of her own. In this case Vice-Chancellor Green, although allowing car fare and hotel bills as suit money to a wife and her witness coming from a distance, declined to allow for the expenses of executing a commission to take depositions da bane esse on the part of the wife, saying, that on this question the statute was express, citing Rev. p. 386 § 44. This statutory provision was that the party requiring depositions on a commission shall be at the expense thereof and shall not have any allowance for the same in the taxation of costs. This has been changed and the act now provides that the party requiring depositions on commission shall in the first instance be at the sole expense thereof, but such expense may be made a part of the taxed costs of the prevailing party if so ordered by the court. Comp. Stat. p. 2236 § 53. Now, in the case at bar, it will be necessary for the wife to take depositions on commission in Belgium. Strict adherence to precedent would seem to require me to deny an allowance for the expense of faking such depositions.

The matter of costs between husband and wife in a divorce suit is sui generis, and I think the learned vice-chancellor erred in the Main Gas& in saying that the wife could not have the expenses of taking depositions on a commission in a divorce suit with her husband. He might, it seems to me, with equal propriety have declined to allow car fare and liotel bills as suit money, upon the ground that the fee bill made no provision for such awards; and to say that because the Evidence act made provision that depositions should be taken at the expense of the party'requiring them, the wife should have-no allowance therefor, might be to deny her the means of making a defence against her husband’s suit. The learned vice-chancellor cites no authority for his decision in this regard, and-the authorities appear to be the other way. I think she is entitled to an allowance to enable her to take depositions on commission.

In 19 C. J. 226 § 537, it is said:

“In addition to the sum allowed the wife for her maintenance and support during the pendency of the suit, it is usual to allow her a sum to defray the expenses of the suit."

In 2 Bish. M.,D, & S. § 992, it is laid down:

“It would be a disgrace to the law and a grievous offence against justice, if, after a woman had given her person and property in marriage to a man with whom afterward a litigation arose as to the conduct of either in the new relation, or as to the validity of the marriage itself, she must sustain her prosecution or defence without the money essential thereto, and with no possible access to the fund which she had contributed to accumulate. Hence, the doctrine and practice of suit money.”

Although the control of the property of married women in this state is no longer given by law to -their husbands upon marriage, and while most married women do not contribute to the funds accumulated by their husbands, nevertheless, the doctrine laid down by Mr. Bishop is equally applicable to .our women who have no funds, quite irrespective of whether or not they ever had any which went to their husbands; although, if the wife has sufficient separate property, the reason for giving her either temporary alimony or money to defray her expenses in the suit does not exist, and she is not entitled to either. Westerfield v. Westerfield, 36 N. J. Eq. 195. See, also, Suydam v. Suydam, 79 N. J. Eq. 144, 146, 147.

All too frequently husbands leave their wives in European countries and come to America, and, after the lapse of the statutory period, sue them for divorce, alleging desertion in their old countries. Several of these cases have fallen under my notice, and I have alwaj-s, upon request of the wives, assigned- counsel to defend them, and have found :n several of the cases, that when a defence was interposed, the suits have been abandoned. I think I may safely assert that it is the policy of our law in all of these cases to see to it that the wives are defended at the husband’s expense, and that their suits are stayed until they provide means ample for the purpose, at least in all cases in which the wives desire to interpose, defence.

Alimony stands upon a somewhat different footing, and when wives have stayed in. Europe for years after their husbands have emigrated here, and have existed there by their own exertions, or otherwise, alimony pendente lile ought to be withheld from them on the ground of laches, if for no other reason. Westerfield v. Westerfield, supra, (at p. 198).

An order will be entered awarding suit money and counsel fee against the husband. No alimony will be allowed at this time. Amounts to be settled on signing order.


text:
    Louise Dooley, otherwise Louise Baumann, petitioner, v. Joseph Edward Dooley, defendant.
    [Decided September 22d, 1921.]
    1. A suit for nullity of marriage when brought for cause existing at the time the marriage is solemnized, when instituted by a woman, should be in her. maiden name, followed by the words falsely called * * * or the words otherwise * * * (adding- the. husband’s surname) ; when such a suit is instituted by a man the woman should be called by her maiden name, followed by the words falsely called * * * or by the word otherwise * * * (adding the husband’s surname) ; however, this defect is of form and not of substance, and the parties being sufficiently identified, there can be no doubt of the validity of the proceedings and decree. •

      2. An unconsummated marriage, which is infected by fraud of a kind which would-reodor auy oilier contraer voidanle, is voidable at the option of the injured party, if promptly disaffirmed before any. change of status has occurred.
    S. 3Vhat is sufficient fraud to avoid such a marriage is the subject of ascertainment in every ease in which the complaining spouse alleges that his or her consent was induced by the other’s fraud.
    4. Defendant represented to petitioner that he was a captain in the United States army; came of a family of wealth and prominence; had been admitted to practice medicine; was honest and of good character ; but, as matter of fact, the representations were wholly false; defendant was never a captain in the United States army, but a corporal; was not •a- member of a family of prominence and wealth, but a social outcast, living on his wits; was not a physician; was not honest or of good character, but was an imposter, traveling under an assumed name; was a forger, a deserter from the United States army.
    5. Petitioner discovered this fraud on the day of the wedding; at once repudiated the marriage; has never lived with defendant and never had sexual intercourse with him. — Held, on the facts of this case, the marriage being unconsummated, the petitioner is entitled to a decree of nullity. Decree nisi accordingly.
    O. Ysern v. Horter, 91 N. J. Bq. 1S9, followed and applied.
    On final hearing in divorce on master’s report and depositions ex parte.

      Messrs. Clancy £ Ellis, for the petitioner.
   Walker, Chancellor.

Before proceeding to a consideration of the merits, of this ease, I desire to say that it is not correctly entitled. A suit for nullity of marriage when brought for cause existing at ox before the time the marriage is solemnized, when instituted by a woman, should be in her maiden name, followed by the words falsely called * * * or by the word otherwise * * * (adding the husband’s surname.) See G— v. G— , 67 N. J. Eq. 30 (at p. 33). See, also, illustrations at pp. 85, 86. When such a suit is instituted by a man the woman should be called by her maiden name, followed by the words falsely called * * * or b3r the word otherwise * * * (adding the husband’s surname). See Bolmer v. Edsall, 90 N. J. Eq. 299; Turner v. Avery, 113 Atl. Rep. 710. Sometimes the husband’s surnames in the titles are altogether omitted. See Ysern v. Horter, 91 N. J. Eq. 189; Fodor v. Kunie, 112 Atl. Rep. 598. However, this defect is of form and n-ot of substance. The parties being sufficiently identified there can be noi doubt of the validity of the proceedings and decree. The ease sub judice would property have been entitled: Louise Baumann, otherwise Dooley, petitioner, v. Joseph Edward. Dooley, defendant. See the remarks of the author of Bid. N. J. Div. Pr. (2d ed.) 352.

Now, as to the meritorious question: The master finds that the petitioner, whose maiden name was Louise Baumann, and the defendant, Joseph Edward Dooley, were lawfully married on May 3d, 1920; that prior to the performance of the marriage ceremony the defendant represented to petitioner and her family and fiiends that he was a captain in the United States army; that he came of a family of wealth and prominence; that he had been admitted to practice medicine in the State of Pennsylvania, and that he was honest and of good character; that petitioner was induced to enter into the marriage, relying upon the statements of the defendant, but that, as matter of fact, these representations were wholly false; that the defendant was not a captain in the United States army; that he was not a member of a family of prominence and wealth; that he had not been admitted to practice medicine; nor was he honest or of good character, but was a deserter from the United States army; an impostor, and was at the time of the marriage sought for by the authorities- of the United States army on two charges, one of having impersonated an officer and the other of having deserted the service of the United States; and that by reason thereof the form of marriage of the petitioner and defendant, because of the said fraud mentioned, was a, mere pretence and wholly null and void. And the master further finds and reports that the petitioner and defendant never cohabited as man and wife, and that the marriage was never in fact consummated. The -petitioner’s residence within the State -of New Jersey, so as to clothe this court with jurisdiction in this cause, is also reported.

The proofs annexed to the master’s report amply sustain these findings, and they also show that the father and brother of the petitioner, having learned these things, or some of them, inlinediately after the marriage, became suspicious of the defendant and ordered him from the family residence, in Orange, about seven o’clock on the evening of the day of the wedding. He went, followed by tire petitioner’s brother. They got into a flight and both were arrested. The brother was bailed out, but the husband remained in jail until taken to Governor’s Island a few darrs afterwards, as a prisoner charged with desertion from the Hnited States army. He was tried by court-martial there August 6tli, 1920, on two charges (1) for having deserted the service of the Hnited States on January 31st, 1919, being then a corporal, and remaining absent in desertion until apprehended in New Jersey on or about May 4th, 1920, and (2) that being then a corporal, on or about August 1st, 1918, he appeared at Philadelphia in the uniform of a captain of the Hnited States army without proper authority to wear the uniform. Pie was found guilty of both charges and was sentenced to be confined for two and one-lialf years at hard labor in disciplinary barracks at Fort Leavenworth, Kansas. The proofs also show that the defendant went under an assumed name, his right name being Kelly. On the morning of the wedding day he forged a check for a considerable amount, for which he might have, but appears not to have been, prosecuted.

The petitioner never lived with, nor has she been alone with, the defendant at any time since the marriage. The proof, therefore, is ample that these parties, petitioner and defendant, never had sexual relations and that the marriage has not been consummated.

In Ysern v. Horter, 91 N. J. Eq. 189, Vice-Chancellor Stevenson, in an exhaustive and well-considered opinion, lays down, as the law' of this state, that—

“An unconsummated marriage, which is infected with fraud of any kind whatsoever, which would render a contract voidable, is voidable at the option of tire injured party, if promptly dis-affirmed before any change of status has occurred.”

And in the opinion (at p. 198) the learned vice-chancellor observes:

“The gist of the decision in the Oarris Case is tersely stated by Chancellor Walker in the case of Bolmer v. Edsall, 90 N. J. Eq. 299, 300, as follows: ‘The court of errors and appeals held that the court of chancery, under its general power to annul fraudulent contracts, has jurisdiction to annul a contract of marriáge for sufficient fraud! [-Italics mine.] What is fraud in respect to the ‘essentials’ of marriage, or, to- use a broader term, what is ‘sufficient fraud-,’ I think remains to-day the subject of ascertainment in every case brought before this court in which the complaining spo-use alleges that his. or her consent to a marriage was- induced by the defendant’s fraud.”

And, again- (at p. 201) :

“So- far as the question has been discussed in reported American cases in other jurisdictions and by the text-writers, I find substantial agreement, to the effect that an uncon-summa.ted marriage is little more than an engagement to marry — that there is no reason based on- public policy why, for instance, a young girl should be tied forever to- an escaped criminal simply because of a ceremony of marriage to which she was induced to consent by a fraudulent representation by her spouse- that he was a person of good character, respectable standing in society and of larga fortune.”

Now, is- the fraud in the present case sufficient to move the court to annual the marriage? I think it is. Here a young woman twenty-two years of age consented to marry a man a few years her senior, who represented to- her that he was a captain in the United States army, came of a family of wealth and prominence, was a physician, was honest and of good character, when, in fact, these representations were- all wholly false. He was for a time in the army, having attained the rank of corporal, a non-commissioned officer, was a deserter from the- army, tried by court-martial, found guilty and sentenced to imprisonment at hard labor in a military barracks; was a forger and a'social outcast living on his wits. This fraud was discovered on the day of the wedding, and the defendant was thereupon turned away from the petitioner’s father’s house with her consent. The parties never lived together and never had sexual intercourse; therefore, the marriage not having been consummated a decree of nullity will be granted nisi. Turney v. Avery, 118 Atl. Rep. 710.

Decree nisi accordingly.


text:
    Trenton Theatre Building Company, the Hildinger Enterprises and the Refined Amusement Company v. Walter Firth, sheriff of the county of Mercer.
    [Decided September 23d, 1921.]
    The court of chancery has no power to enjoin a sheriff or his deputies from preventing the holding forth of moving picture shows on Sunday.
    On order to show cause why injunction should not issue and on niotipn to- strike out bill for want of equity.

      Mr. William L. Edwards and Mr. Theodora Baches, for the complainants.

      Mr. IF. Holt Apgar, Mr. Linton Saiterthvmle, Mr. Paler Baches and Mr. Frederic A. Brace, for the defendant.
   Walker, Chancellor.

This is a suit for injunction brought by the complainants to restrain the sheriff of Mercer county and his deputies from closing- and keeping closed all motion picture shows in their respective theatres in, Trenton, on the first day of the week, commonly called Sunday. On the argument of the order to show cause why an injunction should not issue the defendant admitsi that he has stopped, and says he intends to stop, them, saying that he is advised, and is of opinion, that the proposed action of the complainants is contrary to the provisions of the act commonly called the Vice and Immorality act. Comp. Stat. p. 5712. This is a sufficient statement of the facts. Besides the contention that he, as chief- peace officer of the county, by and through his deputies, is preventing an infraction of the Vice and Immorality act, the sheriff gives notice of a motion to dismiss the bill for want of equity. The question imrolved is not open in this court as the law of the case is settled.

In Green v. Piper (1912), 80 N. J. Eq. 288, Vice-Chancellor Emery held that injunction does not lie to compel public officers to perform their duties respecting enforcement of the Sunday laws. This case grew out of infraction of the Vice and Immorality act. The converse of this proposition is,, that injunction does not lie to prevent public officers from enforcing the A’ice and immorality laws of this state. In Rosenberg v. Arrowsmith (1914), 182 N. J. Eq. 570, Vice-Chancellor Backes'held that the operation of a moving picture show on Sunday is a worldly employment or business in A'iolation of the Vice and Immorality act, and that eAren the fact that the proceeds were to be donated to charity did not make1 the operation of such a show a work of necessity or charity within the exception. of the act. There is nothing in the case before me, either of fact- or la.AAr, AAdiich takes it out from under the doctrine of Green v. Piper and Rosenberg v. Arrowsmiih.

Upon the authority of these turn cases I hold that the court of chancery has no power to enjoin the sheriff or his deputies in the premises, and, further, that the bill lacks equity and must be dismissed.


text:
    Western Electric Company, Incorporated, v. Jersey Shore Realty Company.
    [Decided October 28th, 1921.]
    The first paper in a suit in chancery (bill, petition or answer, &c.) must be endorsed with the office address in this state of the solicitor (or residence of the party, where he appears for himself), and, while no endorsement of address is necessary on any subsequent paper, it may, nevertheless, be made, and if made in a cause in which a solicitor is concerned, it must be his office address m this state, which may be supplemented by an office address out of the state.

      On motion lor order oí reference.

      Mr. George Edivard Quigley, for the motion.
   Walker, Chancellor.

A draft of an order of reference in blank to a vice-chancellor has been handed to me by the solicitor of the complainant, with consent thereunder written hy the solicitors of the defendant. It is endorsed: “George Edward Quigley, Solicitor for Complainant, Office & P. O. Address 195 Broadway, Borough of Manhattan, New York City.” This is irregular. Rule 42 of this court provides, inter alia:

“The solicitor of any complainant or petitioner shall append to his name endorsed on the bill or petition a statement of his office address in this state. * * * The solicitor of any defendant shall append to his name endorsed on the first paper filed by him in the case a statement of his office address in this state.”

Thus it appears that it is unnecessary for a solicitor, after the filing of the first paper in a cause, to' endorse his office address upon subsequent ones. It is, however, quite usual to endorse all papers with not only the name but the. office address of'the solicitor. Now, if a solicitor of this court, who has an office in another state, desires for any reason to endorse bis address in that state upon a paper filed in this court, be may do so if he first endorses his New Jersey office address upon the paper. Thus, the endorsement on the order before me might have been: “George Edward Quigley, Solicitor for Complainant, 543 Fulton Street, Union Hill, New Jersey, also office and post office address 195 Broadway, Borough of Manhattan, New York City.”

An examination of the bill filed in this cause discloses the fact that complainant’s solicitor properly endorsed it with his address in this state. One reason, at least, for requiring the New Jersey address of a solicitor to he endorsed upon certain papers filed in this court is, that the adversary party or his solicitor may be informed where in tliis state notices may be served upon the other side, and he is. not required to make service out of the state. Not only is a. party entitled to know whom to serve (In re Stewart, 85 N. J. Eq. 3), but also where to make service.

The rule must be adhered to, and the first paper (bill, petition or answer, &c.) must be endorsed with the office address in tins state of the solicitor, and, while -no endorsement of address is necessary on any subsequent paper, it may, nevertheless, be made, and if made, must be the office address in. this state, which, as above stated, may be supplemented by an address out of the state.

Where a party appears for himself he must endorse his residence on the first paper at least. This is also a requirement of the rule.


author: Leamjng, Y. C.

text:
    Florence Sayre v. Enos Kimble et al.
    [Decided July 18th, 1921.]
    1. All the provisions of a will must be considered, and, if possible, given effect.
    2. Where a will gave one brother the income from certain property during his lifetime, and in subsequent clauses gave the residue of the estate to such brother and another brother, and directed that on the first brother’s death his income should go to the other brother during his lifetime, and that on the death of both brothers the whole estate should go to a designated niece, and that on the death of the niece the whole estate should go to such two brothers — Held, to give the first brother the income of the described property during his lifetime, or in the event of his death before the other brother, to give such income to the other brother during his lifetime, and to give the residue, including the reversion of the designated property, to the two brothers in fee, to he divested at their death and vested in the niece in the event of her surviving them both.
    3. A testator having given his devisee an absolute estate in fee could limit the estate by a subsequent provision clearly showing his intention that the estate should go over to another person upon the happening of a specified contingency, in which case the estate, though so limited, is still a fee, since it will last forever if the contingency does not happen, hut so long as it is possible for the contingency to happen, it is a determinable fee.

      4. If the devisee, to whom an absolute estate in fee is given, is empowered by the will to convey in fee-simple, a subsequent clause providing that the estate should go over to another person .upon the happening of a specific contingency is void.
    5. A testator will not be presumed to have intended by subsequent expressions and limitations to cut down or condition a fee-simple estate which has been clearly given, and the intention of the testator to limit it over in such circumstances must be clear.
    On final hearing on bill for construction of will of Lewis P. Kimble.

      Mr. Lewis Siarr, for the complainant.

      Mr. Samuel P. Ilagerman, for the defendant Evin T. Ivimble.

      Mr. Joseph If. Wilson, for the defendant Enos Kimble.
   Leamjng, Y. C.

The will of Lewis P. Ivimble, after making several bequests, provides as follows:

“Sixth. — I also give and bequeath to my brother Enos Kimble the income from 423-425-427 Chestnut St„ and 1136 Broadway and the interest on the Camden Eire Association Stock also the interest on Fifteen Thou--'" sand ($15,000). The same to be held in trust during his lifetime. He is to keep the said properties in good repair and pay all taxes, water rents and city claims against the same.
“Seventh. — I give and bequeath all the rest of my property both real and personal of whatsoever kind and wherever found to my two brothers Enos Kimble and EVin T. Kimble to share and share alike to them and their heirs forever.
“Eighth. — Should Enos Kimble depart .this'life, all his income is to go to my brother Evin T. Kimble during his lifetime".
“Ninth. — At the death of Enos and Evin T. Kimble the whole estate is to go to my niece Florence Kimble to her and her heirs forever.
“Tenth. — Should my niece Florence Kimble depart this life then the whole estate to go to my two brothers Enos Kimble and Evin T. Kimble to share and share alike to them and their heirs forever.”

Pursuing tbe cardinal rule of construction that all of the provisions of a will must be considered, and if possible given effect, it seems clear that testator’s intent was to give to Enos Kimble the income of the property named in the sixth clause of the will during his lifetime, and in the event of the death of Enos before Evin T. Kimble, to give that income to Evin during his lifetime; the residue of testator’s estate, including the reversion of the property already referred to, testator, obviously, intended to go to Enos and Evin in fee-simple, subject to the provision that at their death it should go to Florence Kimble in the. event of her surviving them, and not otherwise.

I find nothing in either the rules for the construction of wills or in any recognized restriction of estates which may be created through testamentary provisions that in any way militates against giving full and complete effect- to- that intent.

Although by the seventh clause -of the will an absolute estate in fee in the residuary estate is expressly given to Enos and Evin, it was testator’s privilege to limit that estate by a- subsequent valid provision that the estate should go over1 to another person upon the happening of a specified contingency. An estate in fee, when so limited, is still a fee, for the reason that it will last forever if the contingency does not happen,, but so- long as it is possible tha-t the contingency may happen, it is a determinable fee. In the adjudicated cases the contingencies on which determinable estates in fee have been most frequently considered and declared to exist under the provisions of wills, will be found to have been the death of the first devisees without issue; but it has also- be.en held that estates whose continued duration depend upon tire survivorship of the devisee beyond the life of some other person are also determinable fees. 30 Am. & Eng. Encycl. L. (2d ed.)752. Indeed, it seems impossible to distinguish in principle the- two classes of contingencies referred to.

This right of limitation of an estate in fee is- surrounded by appropriate restrictions. Since an executory devise is indestructible by the act of the owner of the precedent estate, it necessarily follows that if the first devisee- is clothed by the will with the right to convey in fee-simple so as to destroy the attempted limitation over, the limitation over is void. Nor will a testator be presumed to have intended by subsequent expressions and limitations to cut down or condition a fee-simple estate which has been clearly given, and, accordingly, the intention of testator to limit over in such circumstances must lie clear; but when made clear by the provisions of a subsequent- clause of a will the precedent- estate in fee may be thus limited over.

My conclusion is, that Enos Ivimble and Evin T. Kimble enjoy in the residuary estate of Lewis F. Kimble, deceased, a vested estate in fee, subject to be divested at their death and vested in Florence Kimble in the event of her surviving them both. This conclusion is consistent with the principles defined in Patterson v. Madden, 54 N. J. Eq. 714


author: Leaking, V. C.

text:
    John T. Binns et al. v. R. Mills Smith et al.
    [Decided July 29th, 1921.]
    1. The understanding of the parties as to when a purchase-money mortgage referred to in a contract of sale should be made payable, cannot be established by parol proof.
    2. P. L. 1918 119, abrogates the rule as to married -women’s acknowledgments that such acknowledgment be taken in the absence of the husband.
    3. A contract for conveyance of a married woman’s real estate must comply with that law, and the absence of a notary’s certificate of acknowledgment to the agreement strongly indicates that no- acknowledgment was taken. -
    J. In a bill for specific performance against one whose sole defence is an outstanding dower right in one against whom no decree can be made —Held, that a decree may be made with abatement of price to the amount of the value of the dower interest as ascertained by the mortality tables.
    5.. A contract for the sale of real estate contemplating installment payments, but not disclosing the time of payment, cannot be specifically enforced where the complainant does not waive the credit and tender cash, or a mortgage payable on demand.

      On final hearing on bill for specific performance.

      Mr. Herbert J. Koehler, for the complainants.

      Mr. D. Trueman Stockhouse, for the defendants.
   Leaking, V. C.

1. It is clear that the understanding of the parties as to when the purchase-money mortgage referred to in' the contract should be made payable cannot be established by parol proofs. Schwartzman v. Creveling, 85 N. J. Eq. 402.

2. I am convinced that the evidence does not justify an affirmative finding that the contract was acknowledged by Mrs. Smith. Mrs. Smith, probably, understood the transaction fully at the time she signed the agreement and the notary public was no doubt fully satisfied that she understood it. But there is no evidence either by a certificate of acknowledgment or otherwise that she in fact signed or acknowledged that she signed as her free or voluntary act. This specific inquiry by an acknowledging officer is all important. Formerly, the inquiry was required to' be made in the absence of the husband and with specific inquiry as to possible coercive influence of the husband; that requirement is now dispensed with, but the inquiry whether a married woman executes tire instrument voluntarily is now quite as important as it ever has been. The mere circumstance that the notary annexed no certificate of acknowledgment to the agreement strongly indicates that no acknowledgment was in fact taken. The present act (P. L. 1918 p. 119), like the act it amends, provides that "no estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her deed or conveyance, without a previous acknowledgment.” The effect of that provision has been long determined to be to render impossible the specific enforcement of an unacknowledged contract of a feme covert for the sale of land. Schwarz v. Regan, 64. N. J. Eq. 139; Schwabinger v. Saxon (Court of Chancery), 110 Atl. Rep. 15.

3. I see no obstacle to partial performance with compensation arising from the mere circumstance that a. conveyance of the interest of the wife cannot, be enforced. . The accepted rule appears to be 'that partial performance with compensation will only be decreed when the amount of loss for partial failure of title can be ascertained with a reasonable degree of certainty, and is not a matter of mere speculation. Pom. Spec. Perf. § 448. This view was adopted by Vice-Chancellor Stevens- in Milmoe v. Murphy, 56 Atl. Rep. 292; affirmed, 65 N. J. Pq. 767. Bujt, consistently with the authorities on the subject, it is pointed out by Professor Pomeroy, in the same section, that

“the court will not apply the rule already stated except in cases of real necessity, and prefers to grant compensation even when its measure cannot be exact, and the estimate must be rather approximate than certain.”

In this state it is a common practice in cases in which one who owns the fee lias contracted to sell an unencumbered title, and has no substantial defence except an outstanding' ¿lower right in one against whom no decree can be made, to decree specific performance by the owner of the fee with abatement of the purchase price to the amount of the value of the dower interest as ascer-. tained by our table of mortality. In the present case, tire title is in the two defendants, who axe husband and wife, as tenants by the entirety. The objection now made to a decree for specific performance by the husband with abatement from the purchase price of the value of the wife.’s interest is that the value of the interest of the wife cannot be ascertained with reasonable accuracy. The husband has contracted to sell and should comply with his contract if it can be enforced against him; if the only defence available to him should be found to- be the'objection now made, I am unable to regard it as substantial. By our tables of mortality the years of expectancy of life of both parties defendant can be ascertained, and the proportionate value of their respective interests will be disclosed by their respective years of expectancy.' Thus, if the expectancy of one should be ascertained by the master to be ten years and the other fifteen years, the ten years’ expectanc}r would be valued at ten twenty-fifths of the purchase price, and the fifteen years’ expectancy would be valued at fifteen twenty-fifths of the purchase price.

4. But, notwithstanding- the views alreadj^ expressed, it seems clear that no decree can be awarded to- complainant in this case, for the reason that no time is specified in the contract for the payment of the purchase-money mortgage which the contract contemplates that complainant shall give to defendants for a part of the purchase price. The situation presented'is the same as that presented in Moore v. Galupo, 65 N. J. Eq. 194. To be enforced bjr decree of this court the contract must be complete in all its material parts; Avith any material part unexpressed or left open for subsequent negotiation and determination by the parties there can be no decree. The terms of the contract now sought to be enforced clearly disclose that the purchase-money mortgage was to be an extension of credit to tire purchaser; the contemplated installment payments fully disclose that the time of payment was to be postponed. In such circumstances it has been held to be the privilege of complainant to vvaive the credit and tender cash or a mortgage payable on demand. But the pleadings herein do not present any issue on that question. On the authority of Moore v. Galupo, supra, a decree for performance must be denied and the parties left to their legal remedies.


author: Lewis, Y. C.

text:
    The Mayor and Aldermen of Jersey City v. Jersey City Water Supply Company et al.
    [Decided June 2d, 1921.]
    AVhere a city retained $500,000 from the sum due a Avater supply company under a clause in the company’s contract to furnish the city with a water supply system, providing that the sum so retained should be paid to the company whenever the company should deliver to the city a valid release from a certain canal company and its lessee, releasing all their rights to divert the waters of a watershed of a certain river above a proposed reservoir site, “the same to take effect upon their abandonment of the navigation of the said canal” between certain points “under legislative sanction,” a release of such rights by the canal company and its lessee reciting “this release to take effect upon our abandonment of the navigation of the said canal between the points named in the contract ‘under legislative sanction,’ ” was not, no legislative sanction being shown, sufficient compliance with the contract to justify the payment of the money so retained.
    On pleadings and proofs.

      Messrs. íhim.phreys & Sumner, for the defendant Jersey City Water Supply Company.

      Mr. John Bentley and Mr. John Milton, for the complainant.
   Lewis, Y. C.

This matter is before the court on a supplemental bill, filled by the defendant Jersey City Water Supply Company, against the complainant,.the Máyor and Aldermen of Jersey City; and also against the Fidelity and Deposit Company of Maryland as a party defendant. Its object is to accomplish the release and payment to the water supply company of a fund of $500,000, with certain deductions therefrom, retained and withheld by the city of Jersey City from the sum due the water supply company under a contract to furnish the municipality with a water supply system, pursuant to the decree of this court, entered in the original cause June 4th, 1908, and affirmed, with slight modifications, by the court of errors and appeals, by its decree dated March 18th, 1910.

The controversy arises out of a provision of the contract between the city and the water supply'company, dated July 8th, 1901, which reads as follows:

“Fourthi — Whenever the contractors shall deliver to Jersey City a valid release from the Morris Canal and Banking Company, and its lessee, releasing all their rights to divert the waters of the Roekaway river watershed out of said river above said proposed reservoir site, the same to take effect upon their abandonment of the navigation of said canal between Dover and Montville under legislative sanction, for a sum therein to be named and to be paid upon such abandonment, then there shall be paid over by Jersey City to said contractors all of said sum of $500,000, except the amount named in said release, which said last-mentioned amount the contractors authorize Jersey City to pay to said Morris Canal and Banking Company and its lessee, upon the actual abandonment aforesaid.”

The water supply company contends that tire release called for by the fourth clause of the contract referred to has been delivered in accordance with the provisions quoted; and that, therefore, it is entitled to be paid the money withheld by the city, as above indicated. The city of Jersey City, however, asserts that such a release has not been obtained and delivered to it; and that, therefore, the moneys retained should not be paid over by the city to- the water supply company.

The Fidelity and Deposit Company of Maryland, which was the surety on tire water company’s contract, was made a party to this supplemental bill, so that its rights in the controversy might also be presented and adjudicated, but it has filed no answer, and a decree pro confesso has been taken - and entered against it.

The proofs show that there has been delivered to the city of Jersey City a release from the'Morris Canal and Banking Company and its lessee, which contains, among other things, the following terms:

“We, the said Morris Canal and Banking Co., and Lehigh Valley Railroad Co., lessee of the Morris' Canal and Banking Co., in consideration of the premises and of the sum of one dollar to us paid upon the execution of this writing, and to be paid to us upon such abandonment of navigation, have released, and by these presents do release, upon the mayor arid' aldermen o'f Jersey City, their successors and assigns forever, all our. rights to -divert the waters of the Roekaway river watershed out of said river above the proposed reservoir site, mentioned in said supplemental agreement of July 8th, 1901, upon which site there has since been erected a reservoir below Boonton by the .Jersey City Water Supply Company, under its contract with Jersey City.
“This release to take effect upon our abandonment of the navigation of the Morris canal between Dover and Montville, under legislative 'sanction,; and upon the payment by the mayor and aldermen of Jersey City to us of the sum of $1.00 as hereinbefore provided upon such abandonment.”

’ • This, the water supply company contends, is a release in literal 'compliance with the express terms of the fourth clause of the -contract referred to.

. Upon-application of the water supply company to settle certain matters referred to- in- the final decree in the original cause, the release mentioned was received in evidence, and Vice-Chancellor Stevens was asked to adjudge in the final decree that the release was a sufficient, fulfillment of the terms of the fourth section of the contract of Jufy 8th, 1901, and that the sum of $500,000 should no longer be retained by Jersey City, but should be paid over with the rest of the contract price to the water supply company.

Vice-Chancellor Stevens filed an opinion upon this application, which is reported in 78 Atl. Rep. 391, the material portions of which, are as follows:

“I do not think that the decree as it stands should be so modified as to direct the payment of the $500,000 reserved. After giving the contract of July 8th, 1901, considerable study, I am not able to come to the conclusion that the release of May 12th, 1909, is a sufficient compliance with its terms to entitle the water company to the immediate payment of the money. To so hold would be to nullify the general intent of the' parties as, expressed in the instrument itself; but I do not'think that the question should be finally passed upon at this time. If the contention of the water supply company be correct, it would seem that the liability of the Fidelity and Deposit Company, the surety, would or might be considerably increased. If so,, the company is interested in the question and should be heard.

“I cannot find among the papers any copy of the condition of this bond, but it would seem from the terms of the contract of July 8th, 1901, that it is under some liability for the flow of the Rockawa.y up to the limit of seventy millions gallons per diem.

“The question has been informally presented and without any issue framed.

“In a question of such importance the proper course would appear to be to present the matter by bill and leave to file it should be reserved.”

Later, the matter again came before this court upon petition and affidavits of the water supply company, whereby it again sought to obtain'a, decree for the payment of the $500,000 withheld by the c'it3r. After hearing upon that petition, Vice-Chancellor Stevens filed the following opinion:

“I have carefully considered the petition presented by the water company, asking leave to introduce evidence relative to the release of the Morris Canal Company to Jersey City, dated May 12th, 1909. The question is of much importance, and the construction of the supplemental contract of July 8th, 1901, as lax-as it bears upon that release, not without difficulty.

“It seems to- me that this new controversy, involving the large sum of $500,000, should be determined on bill or supplemental bill: and that the signing of the final order or decree in this suit should not be postponed until the final determination of that controversy. The bill was filed August 1st, 1905. The final decree was made on June 4th, 1908, and, except as to an unimportant detail, affirmed on March 18th, 1910; and so it appears that the question of the sufficiency of the release, which it is now sought to interject ixxto the present suit, is one which did not arise until nearly a year after the issues made by the pleadings in this suit had beexx passed upon in this court. To introduce at this stage of the cause aax entirely new issue, whose final determination will necessarily consume much time, would be not Only irregular, but unjust to complainant, whose rights have been established by the court of last resort.”

From this" decree, which was entered on or about November 15th, 1910, an appeal was taken- by the water supply company to the court of errors and appeals, and was there affirmed, in an opinion which is reported in 81 Atl. Rep. (at p. 1134), which reads as follows:

“Per curiam — So much of the decree as is involved ixx the present appeal will be affirmed upon the opinion delivered by the vice-chancellor in the court below. We think that the petition of the appellant, praying that the making of the fifctal decree in this cause be withheld until the determination of the question whether the $500,000 authorized by the third itenr of the contract between the parties, to be retained by the city until the performance by the contractor-, of one or other of the conditions therein recited, is now due and payable to tire contractor-, was properly refused, and we rest this conclusion upon the ground set fox-th in the memorandum opinion of the learned vice-chancellor, delivered in the disposing of the application. The order denying the application will also- be affirmed.”

I cannot see that the situation, as presented by this supplemental bill, differs in -any way from' the situation as previously passed upon by this court and the court of errors and appeals.

Vice-Chancellor Stevens held that he was not able to come to a conclusion that the release of May 12th, 1909, was a sufficient compliance with the terms of the contract of July 8th, 1901, to entitle the water company to the immediate payment of the money. It is true that he said that the matter was informally presented to him, and that it should be brought on by bill or supplemental bill, owing to- its importance; but he also speaks of the matter being premature, and to hold, he says, that the release is a sufficient compliance with the terms of the contract, would be to nullify the general intent of the parties as expressed in the instrument itself.

I am inclined to think that the views heretofore judicially expressed, as herein set forth, are biuding upon me on tills application.

The city’s real purpose, doubtless, was to acquire the flow of tbe watershed complete and free from claims or rights that might conflict with, its untrammeled enjoyment of that unrestricted supply, required for the uses of its thickly-settled area and highly-congested population.

It is most likely that the city, in assenting to paragraph 4 referred to, did not have any intention of relinquishing any of its rights under the contract. It allowed the provision to meet the situation involved, but not to give up1 its valuable rights. Surely', it did not contemplate the production of a. release that was ultra vires and meaningless, lacking legislative sanction (and with which counsel for the water company in their closing argument have intimated the city may have to' be satisfied), but rather, it seems to me, one which would effectually foreclose in the city’s favor whatever rights and claims might in anyr way and at any time he asserted against its paramount rights in the domplete flow of the watershed.

Until such rights, and claims have been thus effectually extinguished and released, and acquiesced in by legislative sanction, I think that the true intent and meaning of the fourth paragraph has not been met and complied with and the application to release the $500,000 fund retained by the city is premature. The supplemental bill will therefore be dismissed.


author: Lewis, V. C.

text:
    Marie Schmidt v. Schmidt Realty and Construction Company et al.
    [Decided June 30th, 1921.]
    The evidence in this ease shows that the mortgage, which recited that it was intended to be a lien upon certain premises second only to the lien of two prior mortgages, was not given in payment of one of -such mortgages sought to be foreclosed, but was simply intended to be a further protection to the mortgagee.
    On pleadings and proofs.

      2Iessrs. McDermott & Fnright, for the complainant.

      Mr. Philip Z dikindassociated with Mr. Isaac F. Goldenhorn, for the defendant Schmidt Realty and Construction Company.
    — Messj's. Lwn, Tamblyn <& Golyer, for the defendants William Solomen, and also for Albert A. Raphael, trustee in bankruptcy of Schmidt Realty and Construction Company.
   Lewis, V. C.

This is a bill to foreclose a mortgage of $20,000 made by the defendant Schmidt Realty and Construction Company to the complainant-, Marie Schmidt, dated June 8th, 1908, and payable June 19th, 1914, with interest at five per cent. Interest was in arrears for a long period. Foreclosure was resisted upon the grounds that .the mortgage was without legal consideration, and that, aside from this contention, it had been satisfied and discharged.

Prior to the execution of the mortgage under foreclosure, complainant claims she placed the sum of $27,000 in the hands of the Schmidt Realty and Construction Company for the purpose of purchasing certain real estate, title to- which was to be taken in complainant’s name, but which was actually taken in the name of the Schmidt Realty and Construction Company. The present complainant thereupon brought suit to set aside the title in the company’s name and to have it decreed to be in her personally, claiming that under these circumstances a trust resulted in her favor, and that the company should be held to hold the land thus purchased with her funds as trustee for her benefit.

Subsequently, that case was settled between the parties; a Us pendens that had been filed was canceled; releases were executed; all the stock in the Schmidt Realty and Construction Company held by the complainant was surrendered by her to the company; and at that time the mortgag-e now under foreclosure was executed by the company in favor of the present complainant, securing a. bond in the sum of $20,000.

The complainant contends that the adjustment of the preceding litigation, and other litigation affecting the company, then pending in other courts, and the surrender of the stock, constituted the consideration for this mortgage, and that it is a legal and valid consideration. The execution and delivery of the bond and mortgage involved are not questioned. Neither do the defendants question the calculation of the amount due tliereon, as submitted by the complainant, so far as the accuracy of the calculation is concerned; but interpose their legal objections to the validity of the mortgage itself.

According to. the calculation submitted, there was due on the mortgage the principal of $20,000, upon which, however, defendants were entitled to credits amounting to $9,870, leaving a balance due on principal of $10,130, with accumulated interest thereon of' $4,933.33, making a total of $15,016.33, for which sum final decree was rendered in favor of complainant.

The mortgage under foreclosure originally covered a tract of about one thousand lots,' situated at Maywood, Bergen county, New Jersey, and was, at the date of its execution, subject to a first mortgage on said lands of $30’,000, held by one Anderson.

About one hundred and. forty-four lots were subsequently released from the Anderson mortgage, and as to these lots complainant’s mortgage became a first lien. ' ‘ '

Anderson’s mortgage was foreclosed by George P. Eust, to 'whom it had been assigned. Complainant’s mortgage was then held by Archibald C. Hart, as trustee for the present complainant; and the Schmidt Eealty and Construction Company and Hart wei’e made defendants in the Eust foreclosure suit. A final decree was entered in that suit in favor of — first, George P. Eust for $35,226.92; second, E. Max Applegate for $799.41; third, Archibald C. Hart for $18,250.84, all with interest and costs, against the Schmidt Eealty and Construction Company, to be raised and paid out of the lands covered bjr the Eust mortgage.

The property was purchased at the sheriff’s sale by William Wemple and A. C. Hart for the sum of $37,678.67, which was slightly less than the amount due on the Eust mortgage, and which left the Applegate mortgage and complainant’s mortgage wholly unpaid.

To finance this purchase Wemple and Hart organized a corporation known as the Maywood Company, the incorporators being Wemple, Hart, Eobert D. Ivent and W. Howard Hears and Edward E. Sackett. This new company executed two first mortgages to the Guarantee Mortgage and Title Insurance Company, one for $23,000 and one for $12,000, a total of $35,000. Hart and Wemple personally guaranteed payment by joining in the bond. To make up> the difference the}r borrowed $8,646.19 from the Merchants’ Bank of Passaic on their personal note secured by mortgage.

To protect Marie Schmidt, the present complainant, whose then solicitor was A. C. Hart, one of the purchasers at the sheriff’s sale, the Maywood Company executed a mortgage to A. C. Iiart, as trustee for Marie Schmidt, for $19,113.34, which represented the amount then due on the original mortgage, which is now under foreclosure.

The mortgage last referred to contained the following recital:

“This mortgage is intended to be a lien upon the premises in question second only to the lien of two mortgages, aggregating $35,000, one upon a part of the premises in question, and the other upon the balance thereof. It is covenanted and agreed between the parties in this mortgage, and the bond accompanying it, that, whereas, the mortgagee, as trustee, but appearing individually in mortgage hereinafter mentioned, at the present time possesses a mortgage upon realty given as security for the payment of the principal before described in this mortgage and the bond accompanying it upon other realty than that described herein, should the party of the second part receive any. payment from such other realty or from any other source upon said bond and mortgage, it is to be credited upon the principal of this mortgage and the bond accompanying.”

It seems clear, from this recital and the evidence in the case, that it was not the intention of the parties that the last mortgage was given in payment of the mortgage now under foreclosure; but that it was simply intended for the further protection of the complainant.

-The evidence further establishes that the Maywood Company mortgage was subsequently satisfied by the payment of $6,000, and that complainant has received from releases and sale of certain of the lots covered b3r the Maywood Compan3r mortgage the sum of $1,140; and from releases on the sale of lots covered by the mortgage under foreclosure the sum of $2,730, making a total, as heretofore indicated, of $9,870, for which credit has been given upon the amount claimed to be due on the original mortgage, which is the one now under foreclosure.

I am satisfied from the proofs presented that the defences interposed cannot be sustained, aard that, in this suit, which is simply for the foreclosure of the mortgage in question, complainant is entitled to her decree for the amount shown to be due in the calculation referred to.

A decree will be advised in accordance with these views.


text:
    Frank W. King, Jr., v. William Locke Rockwell and Joseph M. Avery, executors of the last will and testament of Laurastine Cotheal Smith, deceased, et al.
    [Decided July 29th, 1921.]
    1. Where a will specifically provides that if any beneficiary should contest it, the bequest to such person should be revoked; a legatee who has received his legacy, and executed his release of all claims against the estate is estopped from attacking the will.
    2. A bequest of the residue “to pay same over to such charitable organizations, associations or institutions” as the executors may “deem worthy,” giving the executors full discretion in determining the distribution “among worthy charities,” is valid as against the contention that the gift may be devoted to purposes which are not charitable.
    On bill, &c.

      Mr. Edward F. Merrey, for tlie complainant.

      Mr. Edwin G. Adams, for the defendants.
   Lewis, V. C.

This case was originally submitted to the late Vice-Chancellor Stevens, who died before a decision was rendered. Thereafter an order of re-reference was made to me and counsel have agreed to submit the case on the pleadings and on briefs,

The bill is died for the purpose of having “declared invalid and void” the seventh paragraph of the last will and testament of Laurastine Cotheal Smith, deceased, which reads as follows:

“Seventh. All the rest and residue of my estate, if any there be, after payment of the legacies aforesaid, including any of the said legacies which may have lapsed, I give, devise and bequeath to my executors herein named, or the survivor of them; in trust, nevertheless, to reduce the same to personalty as soon as possible; and to pay the same over to sucli charitable organizations, associations or institutions us my said executors may deem worthy; and in such proportions as they may determine ; giving- my said executors, or the survivor of them, the fullest discretion in the determination of the distribution of the said residue among, worthy charities; such distribution to be made in not lesá .than three years after death.-’

The complainant’s contention is, that the gift is not necessarily to charity, inasmuch as, although the executors must designate as beneficiaries, charitable organizations, associations or institutions, pursuant to the directions of the will, still those organizations might, perchance, expend their moneys for purposes which were not charitable.

No other argument is presented against the validity of the provision quoted.

Defendants, on the other hand, rest upon the language of the will and contend that the gift is dearly limited to charitable uses.

Defendants also question the status of complainant to attack the will, in view of his having accepted a legacy under it, and given a general release of all claims which he might have against the estate. The will specifically provides that if any beneficiaiy under it should, “by any suit or proceeding whatsoever, whether at law or in equity, attempt to nullify, set aside or invalidate, either in whole or in part, this my last will and testament,” the bequest to such person should be revoked.

Undoubtedly, had the complainant seen fit to attack the will, or airy part of it, prior to the acceptance of his bequest under the will, he would have forfeited his legac]’, according to the terms of the will; but having safely received his legacy, and then having executed a release of all claims against the estate, he should be estopped from now attacking the will if he is going to retain that legacy.

I am inclined to the opinion that he has no status, and if counsel for the defendants insists on a decree on the point of the status of the complainant, the court would have to decree that-he has no status to now attack the will or any portion of it.

But rega'rdless of this preliminary question, I am clearly of the opinion that the defendants must prevail in this suit; and that the seventh paragraph of the will is a valid disposition of the residue of the testatrix’s estate to charitable uses and should be sustained.

It directs the executors “to pay the same over to such charitable organizations, associations or institutions” as they .“may deem worthy; and in suehl proportions as they may determine,” and giving them full discretion in determining the distribution “among worthy charities.”

I do not see how there can be any doubt but that the bequest is limited strictly to “worthy charities.” The language of the will is perfectly plain and the testatrix’s intention is clear.

Under the adjudged cases in this state and in England the principle is well recognized that “a gift to a charitable use will not fail of effect because the donor has not pointed out the particular beneficiaries to whom he designs his bounty to, go, provided he has endowed some person with express or implied power to select such beneficiaries.” Hyde’s Executors v. Hyde, 64 N. J. Eq. 6; Hilliard v. Parker, 76 N. J. Eq. 447; Vineland Trust Co. v. Westendorf, 86 N. J. Eq. 343; Thomson’s Executors v. Norris, 20 N. J. Eq. 489; De Camp v. Dobbins, 29 N. J. Eq. 36.

In the ease last cited Chancellor Runyon (at p. 50 of the report) says: “A gift to a charitable institution or society will be presumed to be a charitable gift, though' no purpose is named, and such institution or society will be, presumed to hold such gifts in trust for those charitable purposes for which it exists.”

See, also, While v. City of Newark, 103 Atl. Rep 1042; Townsend v. Carus, 3 Hare 257; Wilkinson v. Lindgren, 5 L. R. Ch. App. 570.

In each of the two cases last cited there was a gift to such charitable societies or institutions as the trustee should see fit, and in each of these cases the gift was held to be a valid charitable bequest.

I will advise a. decree in accordance with thesé views.


text:
    Henry W. Doremus et al. v. The City of Paterson.
    [Decided July 29th, 1921.]
    An application by a riparian owner for an order fixing damages for decrease m rental value and arrested development on account of the pollution of a stream on the claim that conditions had changed since a decree was entered refusing an injunction and providing for payments to riparian owners at stated times while the pollution continued, must be denied where there 'is no showing of change of conditions since the decree.
    On application under a decree.

      Mr. Qanet Van 01 eve, for Louis C. Randall, executor of Scotto C. Nash.

      Mr. Francis Scott, for the city of Paterson.
   Lewis, V. C.

This is an application under a decree of this court to fix the percentage of rental loss and for arrested development in the matter of the estate of Scotto C. Nash. The case of Doremus against the city of Paterson was heard by the late Vice-Chancellor Stevens, and in the decree advised by him he made provision for these payments at stated times to.the riparian owners as tong-as the pollution should exist. The amount involved, as far as the Nash claim is concerned, is in the neighborhood of $1,476. The final opinion in this lengthy litigation was filed by Vice-Chancellor Stevens in 1913 and was affirmed by the court of errors and appeals. The case had been before him on several previous occasions. 63 N. J. Eq. 606; 65 N. J. Eq. 711; 69 N. J. Eq. 175; 70 N. J. Eq. 296; 73 N. J. Eq. 476. His views at this time were based upon the promise of the defendant that the pollution of the Passaic river would cease in the year 1916. In consequence of this promise, no injunctive order was issued against the defendant. The pollution still continues, owing, it is asserted, to the non-completion of the trunk sewer. Since 1916, and every two years thereafter, the defendant has adjusted its damages with the various riparian owners, and on application before me by the solicitors representing all the riparian owners, except the Nash estate, a decree consented to by the solicitor of the city was entered.

Application was then made to taire testimony under the decree to ascertain whether there had been any change in conditions as to the Nash estate since the making of the last decree by Vice-Chancellor S'tevens. It was urged, on behalf of the defendant, that the matter could be taken up under the decree in this informal way. I am rather of the opinion that to deal with this subject, which is of such importance, that the better procedure would be by a supplemental bill. However, upon the consent of both parties, a hearing took place at which several witnesses were sworn. From a consideration of tire testimony of these witnesses it does not appear that there has been any material change in the conditions, since the taking of the testimony before the late Vice-Chancellor Stevens, certainly not since the making of the last decree by the vice-chancellor in 1919. The evidence of the principal witness for the city is, in a large measure, the same as given by him at the hearing before Vice-Chancellor Stevens, particularly as to the value and condition of the Nash property. I am not satisfied to conclude that the arrested development is caused by the acts of the Nash owners, and I do not think that I should at this time change the calculation which Vice-Chancellor Stevens made with so much care and skill and at such labor. His table of the annual or rental values of the various properties is found in 73 N. J. Eq. 506. There may be changes which may affect future awards, but I do not feel that I can now change the decree made by him. His views and method of calculation have received the approval of our court of errors and appeals.