text:
    Cape May County Circuit Court.
    EDMUND O. HOWELL, Jr., RECEIVER OF OCEAN CITY NATIONAL BANK, PLAINTIFF, v. LUTHER L. WALLACE, Jr., RUTH N. WALLACE, JONATHAN F. WALLACE, DEFENDANTS.
    Decided November 30, 1939.
    Por the plaintiff, Benjamin M. Cohen.

    Por the defendants, Augustus S. Goetz.

   Jayne, C. C. J.

The basic and material facts essential to the consideration of this case are not in dispute. The issues of law and fact have been submitted by stipulation to the court for determination without a jury.

An examination of the pleadings reveals that this action is prosecuted by the plaintiff to recover the principal and interest alleged to be due upon two promissory notes. One note was made on April 18th, 1932, by the defendants Ruth R. Wallace and Luther L. Wallace, Jr., in the sum of $1,175 payable to their order four months after date at the Ocean City Rational Bank at Ocean City, Rew Jersey, and subsequently endorsed by them. The other note is dated November 17th, 1932, and is made by Jonathan F. Wallace in the sum of $250 payable to his order one month after date at the Ocean City National Bank and endorsed by Jonathan F. Wallace and Luther L. Wallace, Jr. It is conceded that both notes were negotiated for value before maturity to the Ocean City National Bank and were duly presented for payment and were protested for non-payment. The notes have been admitted in evidence. The plaintiff was lawfully appointed receiver of the bank by the comptroller of the currency.

The defendant Jonathan F. Wallace has evidently failed to file an answer to the plaintiff’s complaint. The joint answer of the defendants Luther L. Wallace, Jr., and Buth N. Wallace embraces the averment non assumpsit infra sex annos upon which plea these defendants solely rely. The present action was apparently instituted on February 3d, 1939.

Additionally, it is acceded that on October 30th, 1937, each of the defendants Luther L. Wallace, Jr., and Buth N. Wallace delivered or caused to be delivered to the plaintiff an affidavit (which may be characterized as verified financial statements of each defendant) and that these affidavits “were submitted as part of a proposed” offer by these defendants to pay to the plaintiff $100 in discharge of their alleged liability on the notes in suit. Suffice to set forth excerpts of the pertinent and relevant statements contained in each affidavit. Luther L. Wallace, Jr., states that “deponent is allegedly indebted to the First National Bank of Ocean City and the Ocean City National Bank in the total sum of about $20,000 as maker and endorser on certain notes.” Buth N. Wallace asserts “Deponent is obligated to the Ocean City National Bank in the sum of approximately $1,100.”

In the light of these facts, it is contended on behalf of the plaintiff that the defendants on October 30th, 1937, acknowledged in writing the indebtedness alleged in the present action. Incidentally, it is observed that the reply is a general denial of the averments of the answer. The usual rule is that if a new promise is to be relied on, the replication (reply) should conform thereto. However, it is desirable to determine the issues actually debated.

The pertinent paragraph of the statute of limitations (2:24-9) provides that: “In actions in the nature of actions of debt or upon the case grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, so as to take any case out of the operation of this chapter, or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by or in some writing to be signed by the party chargeable thereby.”

Intrinsically, this paragraph of the statute is an adoption of the first section of the English statute of 9 Geo. IV, c. 14, passed in the year 1828 and commonly known as Lord Tenterden’s act.

In Parker v. Butterworth, 46 N. J. L. 244, Depue, J., remarked (at p. 247) : “The statute has the words 'acknowledgment or promise’ as the evidence of a new and continuing contract. The use of these words in the disjunctive in the statement of the law gave rise to a service of opposing authorities, in some of which it was held that the statute of limitations was founded on a mere presumption of payment, and that whatever repelled that presumption was an answer to the statute, and that therefore an acknowledgment of the non-payment of a debt, though accompanied by a conditional promise, or even a refusal to pay, was a sufficient answer to the statute. These cases were overruled by the Court of King’s Bench before the act of 9 Geo. IV was passed, in Tanner v. Smart, 6 B. & C. 603, a case which Baron Parke said put an end to a series of decisions which were a disgrace to the law. Hart v. Pendegrast, 14 M. & W. 741. Since the decision in Tanner v. Smart, the law in the English courts has been settled on this footing—that from a bare unqualified acknowledgment of a subsisting debt the law will imply a promise to pay which will obviate the bar of the statute, but that if there be in the admission, or on the face of the writing containing such an acknowledgment, anything to repel the inference of a promise to pay, the rule expressum facit cessare taciturn applies; no promise will be implied, and the acknowledgment will not enable the plaintiff to recover. And if the acknowledgment be coupled with a promise which is qualified or conditional, neither the acknowledgment nor the promise will be available, unless the condition has been performed or the event happened by which the promise is qualified. Smith v. Thorn, 18 Q.B. 134, 143; Hart v. Pendegrast, 14 M. & W. 741, 744; Sidwell v. Mason, 2 H. & N. 306, 309, 310; Everitt v. Robertson, 1 El. & B. 16-19; In re River Steamer Co., L. R. (6 Ch. App.) 822-828; Street v. Lindsay, L. R. (2 Exch. Div.) 314-316; Wood on Limitations, § 85. The weight of authority in the courts of this country is in accordance with the English doctrine, as will appear in the note of the American editors to Whitcomb v. Whiting, 1 Sm. Lead. Cas. 867; and such has been the course of decision in this state. Belles v. Belles, 7 Hal. 339; Ridgway v. English, 2 Zab. 409, 413, 419; Ex’rs of Conover v. Conover, Saxt. 403.”

In Freeholders of Somerset v. Veghte, 44 N. J. L. 509, Magie, J., stated (at p. 514) : “Such new promise may be express or implied, from the circumstances which justify such an inference. Such circumstances must amount to an unqualified admission of the continued existence of the obligation, and must, at least, not negative the debtor’s willingness to perform it.”

An exploration of the decisions reveals that in our state, as in England, one of three factual elements must be shown to exist in order to remove a case from the operation of the statute of limitations: I. An unqualified and unconditional promise to pay the debt; II. An admission or acknowledgment by the debtor of a subsisting debt, from which a promise to pay the debt can be logically implied; III. A conditional promise to pay the debt and evidence which shows that the condition has been performed. Moreover, any such acknowledgment must, of course, be received and considered as a whole. JSTo part of it can be ignored by the plaintiff. The plaintiff introduces proof of the acknowledgment and°he is not permitted to adopt the admission or acknowledgment of the debtor and reject the conditions and qualifications which accompanied it.

Reverting, then, to the stipulated facts it becomes at once apparent that the defendant Luther L. Wallace, Jr., did not in his affidavit either clearly refer to the notes in suit or unqualifiedly acknowledge such an indebtedness. The language he employed was that he “is allegedly indebted” as maker and endorser on certain notes held by the First National Bank of Ocean City and the Ocean Citjr National Bank. An acknowledgment which will take the debt out of the operation of the statute must clearly appear to refer to the very debt in suit. 37 C. J. 1099. The debt must be acknowledged by the debtor to be more than a mere alleged claim against him. The debt must be admitted to be a subsisting obligation. Mrs. Wallace in her affidavit acknowledges that she “is obligated to the Ocean City National Bank in the sum of approximately $1,100.” In the absence of some additional proof, it cannot be confidently deduced that Mrs. Wallace was referring to the promissory note of $1,175 mentioned in the complaint.

In the present case, however, the exhibits and stipulated facts justify the conclusion that these defendants represented to the plaintiff with some particularity their absolute inability to pay the notes. They did not promise to pay the amount alleged by the plaintiff to be due and owing. The affidavits presented to the plaintiff with the offer of compromise were obviously intended to exhibit the insolvency of the defendants. Their debts and obligations are disclosed. Mr. Wallace declares that he “has no assets of any value, being forced to rely on current personal efforts for a living for himself and his family.” Mrs. Wallace asserts that she has “no source of income excepting from her own efforts and those of her husband” and that she has debts amounting to $1,766.24.

In these statements the defendants proclaim their inability to pay the notes which manifestly repels the implication of a promise to immediately pay them. The new promise was merely an undertaking to pay $100 in discharge of the whole indebtedness claimed by the plaintiff. The defendants expressed no willingness to pay a greater sum. A general new promise to pay the whole indebtedness cannot and is not to be inferred from these facts. The acknowledgments, if any, were qualified by the limitation of the amount proposed to be paid.

It might have been contended with some significance that the two verified statements of the defendants were so integrated with the offer of compromise as to be inadmissible in this action and that they contained concessions which were only made by the defendants to induce an acceptance of the offer of compromise. However, the papers were submitted without objection and no opinion upon the subject need be expressed. The theory that the defendants should be held liable for the sum of $100 has not been suggested in the presentation of this case.

The findings of fact above stated necessitate a judgment in favor of the answering defendants of no cause of action.


source: Caselaw Access Project

author: Jayne, C. C. J.

license: Public Domain

text:
    Atlantic County Circuit Court.
    MYRTLE PYLE, PLAINTIFF, v. FIDELITY PHILADELPHIA TRUST COMPANY, EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF THOMAS F. CLABBY, DECEASED, AND BENJAMIN FRIEDBERG, DEFENDANTS.
    Decided January 3, 1940.
    For the plaintiff, Harold E. Rottenberg.

    For the executor of Thomas F. Clabby, deceased, Bolte & Miller.

   Jayne, C. C. J.

The defendant Thomas F. Clabby having died, the present action by means of appropriate procedure is now being prosecuted against his executor, Fidelity Philadelphia Trust Company. The executor seeks the allowance of a rule striking out the complaint relative to the alleged liability of the testator Clabby. It is asserted that the complaint in that relation fails to declare a cause of action. Such a motion under modern practice (Supreme Court rule 40) has been substituted for and is tantamount to the general demurrer at comon law. Savage v. Public Service Railway Co., 95 N. J. L. 432; Lehigh Valley Railroad Co. v. United Lead Co., 102 Id. 545; Lully v. National Surety Co., 106 Id. 81; Blum v. Jersey City Lumber Co., 112 Id. 65.

Positively, in the consideration of a motion of this nature all the facts adequately alleged must be accepted as' true. Tinsman v. The Belvidere Delaware Railroad Co., 26 N. J. L. 148, 159; Crawford v. Winterbottom, 88 Id. 588; Koewing v. West Orange, 89 Id. 539, 540; Schaedel v. Liberty Trust Co., 99 Id. 380, 383; Campbell v. The Pure Oil Co., 15 N. J. Mis. R. 733.

It is insisted that the plaintiff is entitled to have the facts alleged in the complaint considered by a jury. Striking out a truly frivolous complaint or answer is not an infringement of the right of trial by jury. Eisele & King v. Raphael, 90 N. J. L. 219, 333; Wittemann v. Giele, 99 Id. 478; National Surety Co. v. Mulligan, 105 Id. 336, 339.

Encountering, then, the predominant question concerning the legal sufficiency of the complaint, it is stipulated that an additional fact to which reference will be presently made, shall also be recognized as if it had been embodied in the allegations of the complaint.

Concisely stated, the complaint avers that on July 10th, 1936, Thomas F. Clabby was the owner of premises situate along the boardwalk from States avenue to Maryland avenue in the city of Atlantic City. A building containing several stores had been erected thereon and a wooden footpath led from the rear of the stores to Maryland avenue. On March 10th, 1936, Clabby let the entire premises to one Benjamin Eriedberg for a term commencing April 30th, 1936, and terminating October 1st, 1936. This fact has been stipulated. It is then alleged in the complaint that Eriedberg sublet the store known as Ho. 835 to one John Davis by whom the plaintiff was employed. The plaintiff, while walking on the footpath from the store toward Maryland avenue on July 10th, 1936, was caused to fall, and to thereby suffer bodily injury. The wooden walk “gave way” and “collapsed.” Additionally it is alleged that the walk was then “in a dangerous condition and in need of repair” of which facts Clabby had been previously informed.

Significantly, it is declared in the complaint that it was the duty of Clabby “to keep and maintain the said pathway in proper condition and not permit the same to become unsafe, &c.;” that Clabby disregarded this duty and “failed to keep and maintain the said pathway in proper condition so that the same should not become dangerous to the tenants. employes and rightful occupants of said buildings;” that Clabby “allowed same to be and remain in such unsafe and dangerous condition and out of repair that, by reason of and through defendant’s [Clabby’s] carelessness and negligence in neglecting to repair said pathway, the plaintiff was seriously and permanently injured.”

It is elementary that to create legal liability upon the part of a defendant the injury which presents the basis of the action must be predicated upon the violation, neglect or omission of some legal duty which the defendant owed to the injured party and which constituted the proximate cause of the injury and damage. Otherwise, damnum absque injuria. It is essential that the two elements of tort feasance exist, damnum et injuria. Kingsley v. Delaware, Lackawanna and Western Railroad, 81 N. J. L. 536, 541; Johnson v. Public Service Railway Co., 83 N. J. L. 647; Morril v. Morril, 104 Id. 557; Louis Kamm, Inc., v. Plink, 113 Id. 582. The naked allegation of a duty is unavailing. The facts and circumstances from which the duty legally arises must be exhibited in the complaint and the sufficiency of the pleading is to be determined from the facts from which the duty is deduced. Marvin Safe Co. v. Ward, 46 Id. 19.

In order to maintain an action of tort for breach of a contractual duty, a plaintiff must have a status under the contract that would entitle such plaintiff to maintain an action upon the contract for its breach. Clyne v. Helmes, 61 N. J. L. 358; Styles v. Long Co., 167 Id. 413, 417; Siggins v. McGill, 72 Id. 263; Reilly v. Feldman, 103 Id. 517; Hasse v. Gielz, 108 Id. 252; Fedor v. Albert, 110 Id. 493; Eberle v. Productive Building and Loan Association, 119 Id. 393.

The discovery in the present complaint of some legally substantial theory of liability of the defendant Clabby seems unattainable. There is no implied contract or condition upon the letting of a building or land that the premises are or shall be lit and suitable for the use of the tenants or their employes. Naumberg v. Young, 44 N. J. L. 331, 344; Clyne v. Helmes, supra. Therefore as a general rule a landlord is not liable for injuries sustained by a tenant, his guests or employes by reason of the ruinous condition of the demised premises. Siggins v. McGill, supra; Reilly v. Feldman, supra; Bolitho v. Mintz, 106 Id. 449. Normally a tenant leasing premises assumes the risk of clangers arising from the unsafe condition of the premises. Peterson v. Zaremba, 110 Id. 529.

These general rules are not applicable to all circumstances, notably where the defective condition is of a part of the premises intended to be used in common by different tenants and over which portion of the premises the landlord has retained control for such purpose. The reserved control and the express or implied invitation of the landlord to tenants and their guests to make use of such portions of the premises creates the duty on the part of the landlord to exercise reasonable care to have such places reasonably suitable for the intended use. Gillvon v. Reilly, 50 N. J. L. 26; Gleason v. Boehm, 58 Id. 475; Siggins v. McGill, supra; McCracken v. Meyers, 75 Id. 935; Perry v. Levy, 87 Id. 670; Ionin v. E. D. & M. Corp., 107 Id. 145; Polizzano v. Mapes Holding Co., 115 Id. 352; affirmed, 116 Id. 180; Hollingshead v. Zemkoski, 115 Id. 376; affirmed, 116 Id. 377. The owner or landlord, even then, is only liable for an injury resulting from a use of the premises within the confines of his invitation. Shenin v. Steinberg, 117 Id. 458, 460.

Where there is an absolute demise of the entire premises without any reservation by the landlord of a right of entry or control, the use and occupancy of the premises are pursuant to an estate vested in the tenant and are exclusive of the landlord. Hammer v. Vanderbilt, 116 N. J. L. 574. The employes of the tenant enter the premises in such event under the tenant’s title and not by any invitation from the owner. There are, of course, other circumstances in which a landlord may become responsible for his acts or omissions although he was not under any contractual or legal obligation to engage in such undertakings. For example, where a landlord voluntarily and gratuitously attempts to make repairs to the demised premises and negligently performs such work. La Brasca v. Hinchman, 81 Id. 367; Broame v. New Jersey Conference, 83 Id. 621; Charney v. Cohen, 94 Id. 381; affirmed, 95 Id. 538; Nilsson v. Abruzzo, 107 Id. 327; Vollkommer v. Menge, 116 Id. 82; Edwards v. Stein, 121 Id. 233; or where the landlord assumes the duty to provide and maintain a light upon a stairway; Rhodes v. Fuller Land and Improvement Co., 92 Id. 569; Stathos v. Bunevich, 107 Id. 269; or where the owner of a building constructed for public uses temporarily leases it for a public function. Eckman v. Atlantic Lodge, 68 Id. 10; Johnson v. Zemel, 109 Id. 197.

Moreover, it is true that an owner who creates a nuisance on his premises can not escape liability by surrendering occupancy and demising the premises whereon the nuisance continues to exist. Ingwersen v. Rankin, 41 Id. 18; affirmed, 49 Id. 481. It is to be noticed, however, that in the case just cited the injury complained of did not result from the condition of the premises demised to the plaintiff. It arose from a cause extraneous to the premises demised. But see, Monzolino v. Grossman, 111 Id. 325; Winarsky v. Cohen, 15 N. J. Mis. R. (at p. 418); Wasilewski v. McGuire Art Shop, 117 N. J. L. 264. So, also, a lessor of lands is liable for a nuisance where the nuisance is the necessary, contemplated or probable result of the use of the premises for the purposes for which they are leased. Freeholders of Hudson v. Woodcliff Land Co., 74 N. J. L. 355.

The factual allegations of the complaint at hand do not disclose that the defendant Clabby retained to himself control of the wooden footpath for the common use of the occupants of the premises; that he was under any contractual duty to repair it or that he endeavored to repair it and did so negligently. His alleged dereliction is the failure to maintain the footpath in a safe condition for use by the plaintiff. In the circumstances here alleged and stipulated, it is not apparent that Clabby was under any such duty. In the absence of a covenant to repair, the lessor of demised premises is not obligated by law to make repairs. Naumberg v. Young, supra; Heintze v. Bentley, 34 N. J. Eq. 562; Murray v. Albertson, 50 N. J. L. 167; Barthelmess v. Bergamo, 103 Id. 397; McCarthy v. Bye, 118 Id. 94; Harenburg v. August, 119 Id. 83; Edwards v. Stein, supra.

The complaint does not place the alleged canse of action within any of the categories preyiously mentioned. The factual situation resembles in its legalistic significance those existing in Greenwald v. Geller, 9 N. J. Mis. R. 525; affirmed, 109 N. J. L. 549, and in Mancini v. Stephenson’s Associates, Inc., 15 N. J. Mis. R. 9.

A rule will be granted striking from the complaint the alleged cause of action against the executor of Thomas 3?. Clabby, deceased.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    THE COLONIAL LIFE INSURANCE COMPANY OF AMERICA, PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT. CITY OF JERSEY CITY, PETITIONER, v. THE COLONIAL LIFE INSURANCE COMPANY OF AMERICA, RESPONDENT.
    Decided January 9, 1940.
    For the Colonial Life Insurance Company of America, William B. Gannon.

    For the city of Jersey City, James A. Hamill (by Frank P. McCarthy).

   Quinn, President.

The Colonial Life Insurance Company of America was the owner on October 1st, 1936, of a brick garage building property in the city of Jersey City which was assessed for taxes for the year 1937 in the sum of $60,400, being $7,600 on land and $52,800 on the improvement. An appeal from the assessment to the Hudson County Board of Taxation resulted in a reduction of the building valuation to the extent of $12,500 and an affirmance of the land valuation, making a total assessment as reduced of $47,900.' Both taxpayer and taxing district appealed from the county board judgment, the former for a reduction on, land and a further reduction on improvements, and the city for restoration of the assessment to the figures originally set by its assessing authorities.

Testimony was taken for this board by one of the commissioners sitting alone (Pamph. L. 1905, ch. 67, § 2; R. S. 54:2-18), in the course of which counsel for the taxpayer raised, and has argued before the board, as a whole, on motion, several matters of law, which we herewith consider seriatim.

The taxpayer first moves for the dismissal of the petition of the city on the ground that it does not in form conform to the rules of this board in effect at the time of its filing, and, in particular, to rule 7 which required that “all appeals to the board shall be by petition in writing, shortly and definitely setting forth the nature of the complaint and the relief desired.” The questioned petition recites the ownership and description of the property under appeal, the amount of assessment made upon land and building by the assessors, and the appeal to the county board, together with the determination arrived at by that tribunal. There follows the recital, “at which action, determination and judgment, in reducing said assessment, your petitioner is aggrieved because the said judgment is illegal and void for the following reasons :” and a listing of six printed grounds of appeal. The first of these reads, “1. The assessment has been reduced to less than the true value of the property.” The other grounds are obviously inapplicable to the present appeal, and, according to counsel for the taxpayer, were apparently printed into the form in order to meet a situation presented in other cases where the county board had failed to afford the city notice of hearing, and for the purpose of laying the groundwork for possible certiorari proceedings. We are satisfied that there was no intention on the part of the city deliberately to disregard the requirements of rule 7, supra, and that the taxpayer has in nowise suffered harm or prejudice in the prosecution of its case as a result of the form of the city’s petition. The rule in question not being jurisdictional, we are free to relax its operation under the peculiar circumstances of the case, in order to prevent the working of prejudice to the interests of a taxing district. City of Garfield v. Forstmann Woolen Co. (State Board), filed September 12th, 1939. We may properly treat the extraneous matter in the petition as surplusage and direct our attention to the operative prayer of the petition, “that the assessment for the year 1937 be restored to the true value of the property, as assessed by the assessors of Jersey City as aforesaid.”

The taxpayer further moves for judgment pursuant to the prayer of its petition and to dismiss the appeal of the city on the merits, contending that the testimony adduced on behalf of the taxing district does not, under the controlling statutes, tend to establish the true value of the property under appeal. In this connection the argument proceeds upon the preliminary contention that the city was precluded from confining its appeal to this board from the county board judgment, to the issue as to the true value of the improvement, since both the original appeal by the taxpayer to the county board and its present appeal raise issues with respect to the valuation of both land and building. The city’s procedure, it is maintained, is an unjustifiable attempt “to convert the proceeding essentially from a land and building appeal to a building appeal only.” It appears to us, however, that the course taken by the taxing district is unexceptionable. Under Pamph. L. 1906, ch. 120, § 10 (R. S. 54:4-35), “any action or determination of a county board of taxation may be appealed for review to the State Board of Tax Appeals.” In the present situation the county board had responded to a taxpayer’s appeal on both land and improvements valuations ■with a determination which left the land valuation intact and reduced only the assessment on the building. Obviously the taxing district was justified in considering itself aggrieved to the extent of the reduction of the building valuation only, and warranted in limiting its appeal to this board to that issue. In doing so it did not prejudice the taxpayer’s prosecution of its own appeal with respect both to land and building or modify the quantum or character of proof incumbent upon it to produce in meeting that appeal, as counsel for taxpayer suggests may be the case if the city’s appeal is entertained in its present form.

With respect to the argument made by the taxpayer as to the insufficiency of the proofs offered by the city, the record shows the following. The city called one witness who testified to a value for the land, if vacant, of $15,700, based upon an analysis of a sale of property across the street from the locus in quo in 1931, and another witness who estimated the sound value of the improvements at $59,440 by determining the reproduction cost new and allowing for depreciation and obsolescence. The second witness testified in both the city’s appeal and that of the taxpayer, and the land expert only in defense against the taxpayer’s land appeal. The city, however, offered no proof whatsoever bearing directly on the true value of the parcel taken as a whole (land and improvements together), and the taxpayer’s main contention upon this motion is that the city’s case is, in this regard, fatally defective. We think not. While we agree with the taxpayer that the ultimate desideratum under our tax statutes in valuation cases is the actual or hypothetical sale price of the entire parcel of realty in question as a unit, between a willing buyer and seller, at a bona fide sale (see Turnley v. Elizabeth (Supreme Court, 1908), 76 N. J. L. 42; 68 Atl. Rep. 1094), yet we must bow to the authority of our Supreme Court, which has held that where both land and building are under appeal, it is proper to establish the operative fact of the true value of the entire parcel by the summation of separately arrived at valuations for the land, as if vacant, and for the improvements alone. Koch v. City of Jersey City (Supreme Court, 1937), 118 N. J. L. 85; 191 Atl. Rep. 558; affirmed, (Court of Errors and Appeals, 1938), 119 N. J. L. 432; 179 Atl. Rep. 275.

Nothing is said in or to he implied from the Koch case, however, by way of endorsement of the persuasiveness or probative force of the summation method of proof there considered. All established and scientific real estate appraisal thought is in the other direction. Babcock, The Appraisal of Real Estate (1927), is to the following effect (at p. 102) :

“The process of computing values of properties by adding separately computed values of land and building is rarely the correct [sound] procedure. Ordinarily the computation process should involve first the computation of a total value.”

The author goes on to indicate that the summation method is particularly faulty when applied to income producing propertjr (as in the present case) since such properties owe their selling value to a capitalization of income which may represent an “improved value,” resulting from the combination of the land and its improvement, over and above the sum of the value of the land, vacant, and the reproduction cost of the building depreciated. Babcock, supra, p. 103.

Nothing in the statutory directions for the assessment of real property in the first instance appears to be inconsistent with the authoritative position cited above. Under Pamph. L. 1918, ch. 236, § 401 (1) (R. 8. 54:4-23), the local assessor is directed to ascertain the full and fair value of each parcel of real property situate in the taxing district, “at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract * * *.” The word, “parcel,” as here employed, obviously means a unit of land, together with its concomitant improvements, if any. If the criterion of selling price is to be accorded any realistic significance, there is no basis for any construction of the statute to the effect that the assessor is directed to ascertain the selling price of the land as if vacant, where actually improved, and to add to it some supposed, though obviously unthinkable selling price of the building detached from the land and the location. See Turnley v. Elizabeth, supra (at p. 44).

While it is true that assessors are, and for many years past have been directed under rule sanctioned by statute, to apportion the true value of each entire parcel of realty between land and building for listing purposes (Pamph. L. 1918, ch. 236, § 401 (1); R. S. 54:4-26), and in order to foster uniformity of valuations (City of Newark v. Timer (Supreme Court, 1934), 12 N. J. Mis. R. 125 (at p. 127); 170 Atl. Rep. 37), it is entirely feasible to make such apportionment on the basis of the true value of the entire parcel, be that greater or less than the sum of the value of the land unimproved and the reproduction cost of the building conventionally depreciated, depending upon whether the improvement is an economic one or otherwise, and giving the proper credit or discount accordingly, as the case may be, to land and building. Babcock, supra, pp. 175, 176, 181 et seq.

The foregoing should suffice to indicate that the method of proof adopted by the city in the instant ease, while not subject to commendation from the standpoint of probative force, in the absence of such proof of the selling value of the parcel as an entirety as would tend to corroborate the separately arrived at conclusions of the land and building experts taken together, is nevertheless sufficient under controlling precedents, to constitute some evidence of the selling value of the parcel as an entirety, and to dictate a denial of the taxpayer’s motion so far as directed to the sufficiency of the city’s proof, prima facie.

Our attention is finally directed by taxpayer to the refusal of the commissioner who sat at the hearing to allow taxpayer’s witness to state what rental income of the property he took into consideration in arriving at his conclusion as to the true value of the parcel. We have heretofore expressed the view that evidence of rentals as an index of value may ordinarily be received in evidence, but must be considered with caution. State, Hurd v. Cook (Supreme Court, 1897), 60 N. J. L. 70; 36 Atl. Rep. 892; State, Keeler v. Tindall (Supreme Court, 1872), 36 N. J. L. 97, 100; City of Hoboken v. Hoboken Land and Improvement Co. (State Board), June 7th, 1938. It is held, for example, that where the assessment of land is in issue, the rental income of land, improvements and equipment leased together is not evidential unless apportioned. Gibbs v. State Board (Court of Errors and Appeals, 1925), 101 N. J. L. 371; 129 Atl. Rep. 189. Income is an element to be taken into consideration only where the yearly rental is calculated to reflect the true value of the property, and not, therefore, where the source of income is from an unstable and fleeting type of industry. Id. In the present case, however, the property is a commercial garage building, in use for the precise purpose for which it was built. Net return is, in the case of such property, a basic factor in determining its value to a prospective purchaser and should therefore be taken into consideration, along with other indicia of value, in determining the statutory true value of the property.

As was well stated by the court of last resort of Connecticut in Somers v. City of Meriden (Supreme Court, 1934), 119 Conn. 5, annotated in 95 A. L. R. 442:

“Present income and that reasonably to be anticipated exerts a large influence upon the amount which a prudent man would give for property as a permanent investment. State v. Illinois Central Railroad Co., 27 Ill. 64; People v. Kalbfleisch, 25 App. Div. 432 (N. Y.).”

The court held in the cited case that average rental income for a reasonable period prior to the assessing date, and thereafter if reasonably estimable, should be taken, rather than the specific income on the assessing date or for the current year.

The taxpayer’s motions will be denied for the reasons set out above, but the case will be listed for further hearing before the commissioner, so that the evidence relating to rental income may be received, and-to permit the taxing district, if it chooses to do so, to offer proof as to the true value of the parcel as an entirety.


author: Matthews, A. M.

text:
    Edna R. Hanniball, petitioner, v. Herman L. Hanniball, defendant.
    [Decided December 28th, 1939.]

      Messrs. Wall, Haight, Carey & Haripence (Mr. Edward J. O’Mara, of counsel), for the petitioner.

      Mr. John J. Fallon, for the defendant.
   Matthews, A. M.

This is a suit for divorce a mensa et thoro on the ground of extreme cruelty.

Petitioner and defendant have been married approximately twenty-two years and have one surviving child, a daughter, fourteen years old.

According to the testimony in the case, petitioner and defendant lived in reasonable harmony until the year 1933. From then until April 16th, 1938, when the petitioner alleges she was forced to leave the defendant’s home in Glen Kidge, New Jersey, the defendant is alleged to have carried on a course of abusive treatment which culminated in a quarrel with accompanying violence by the defendant toward the petitioner which forced her to leave on April 16th, 1938.

The question before the court in this case is largely factual, though the legal questions of sufficiency of cruelty under the statute and the question of condonation have been urged by counsel for the defendant. The acts of cruelty complained of by the petitioner, and concerning which testimony was offered in her behalf by herself and her witnesses, are not, save in the culminating episode, acts of physical violence, though there is testimony of threats of violence with a revolver made by the defendant against petitioner’s mother, the carrying out of which the petitioner says she prevented by restraining the defendant.

There are a series of acts testified to by the petitioner, some of them corroborated by petitioner’s daughter, and some by others of her witnesses, which, without reciting the testimony, may be referred to generally as acts of abuse by rage and by filthy name calling of the petitioner and her mother by the defendant, on occasions when it was alleged he was drunk, as well as on occasions when he was not drunk.

Backgrounding a great deal of this abusive rage and name calling, accompanied at times with verbal abuse of the parties’ daughter, and throwing about of articles of house furnishings, are the financial dealings of the defendant with the petitioner’s mother.

The petitioner’s testimony, as well as the defendant’s testimony on cross-examination reveals that the defendant was an unappreciative beneficiary on many occasions of his mother-in-law’s means.

There were quarrels, testified to by the petitioner, during which the defendant went into rage and threats and name calling, resulting from her telling the defendant that she had made good worthless checks which he gave, and on one of these occasions the testimony revealed that the petitioner gave the defendant her engagement ring which he pawned for $200 to make good the check. This last incident happened in 1937. At the hearing of this cause the testimony showed that only $10 plus some interest had been paid by the defendant towards the redemption of the ring.

Indeed the testimony of the defendant, elicited on cross-examination, corroborated the petitioner’s testimony that her mother, who as the evidence of both petitioner and defendant shows, was roundly and vulgarly abused in language and threats in her absence but in the presence of the petitioner, was a large contributor of money not alone to the regular living expenses of this couple, but also during the financial difficulties in which the defendant found himself by reason of business failures. Roughly these contributions, according to the testimony, approximated. $60,000 to $70,000.

Why in the face of such largess the petitioner should have been compelled to listen to the foul names which defendant admitted he, at least on one occasion, used about his mother-in-law, and why the petitioner should have been compelled on at least three occasions to plead with defendant not to carry out his threats to shoot his mother-in-law, can be explained only on the theory that uncontrolled rage and base ingratitude characterized defendant’s treatment of his wife and her mother.

The testimony of the fourteen-year-old daughter of this couple as to her father’s conduct toward her mother appeared worthy of credence. Her testimony about her father’s awakening her late at night in April, 1937, and of the events following that incident, are such as to indicate that neither she nor her mother was safe from the uncontrolled rage of the defendant.

Moreover, the daughter’s recitation of the incidents of the culminating quarrel of April 16th, 1938, leaves the inescapable conclusion that her father had no respect for either her or her mother.

Over against this testimony of the petitioner and her witnesses there was the testimony of the defendant who denied the drunkenness alleged and testified about against him, and also most of the other acts of which he was accused.

The cross-examination of the defendant, however, forced admissions, and in many instances palpable avoidances of admissions on his part, which may well be considered corroboration of the petitioner’s charges and testimony against him. Indeed from my observation of the defendant during the trial, and particularly during his testimony on the stand, I am satisfied that he blinked the truth on occasions and that his attitude as a witness was consistent with the attitude complained of by his wife in her petition and testimony.

His witnesses offered little corroboration of his denial of the charges made by his wife against him.

His witness, Mr. Vogt, left the impression with me, after giving his testimony the attention due a member of the bar, that he, Mr. Vogt, who insisted that his role in the negotiations preceding this divorce case was that of friend rather than lawyer, was, at the time of the said negotiations, more interested in not having the defendant give np any rights he might have in the property that might accrue to his wife than in the complaints of the wife against her husband. Mr. Vogt did testify, however, that the petitioner’s mother had consulted him a year before the separation of the couple about her daughter’s threat to leave the defendant then on account of defendant’s treatment of petitioner.

The medical testimony introduced by the defendant to controvert the testimony of the petitioner, as to her physical condition, which was corroborated in part by her witness, Dr. Jenkin, had little probative value, due to the fact that neither of the defendant’s medical witnesses had seen the petitioner professionally in recent years.

Indeed if the heart ailment, which Dr. Cosgrove did not call organic, and which occurred after childbirth in 1924, if that ailment, or a predisposition to a recurrence of it, were known to this defendant, then- indeed his conduct testified to by the petitioner’s witness might be considered as heightened in cruelty in the face of such knowledge.

I find from the proofs in the case that the petitioner has made out a case of extreme cruelty and that her allegations have been sufficiently corroborated both by her witnesses and by the exhibits which she offered at the trial. The daughter’s testimony particularly had all the earmarks of intelligence and understanding and was entirely worthy of credence.

Counsel for the defendant urges in his brief that sexual indulgence between the parties up to a few weeks before the final incident which the petitioner complains of must be regarded as having condoned all acts prior thereto, and that the alleged happenings subsequent to such intercourse are insufficient to warrant the court in granting a decree to the petitioner.

Moreover, counsel for the defendant makes point of the fact that petitioner’s testimony with respect to this sexual indulgence was that she “submitted” to it.

In dealing with this matter of condonation by indulgence in sexual intercourse the court must, it seems to me, consider the facts of each case in their entirety, as well as the parties and their social status in so far as these reveal themselves in the trial of the cause.

It is difficult indeed to understand how so intimate a relation would be unaccompanied by at least human affection between the parties indulging in it. However, the frequent occurrence of such indulgence in cases that have histories of antecedent cruelties leads me to the conclusion that “submission” may well be an explanation particularly in cases like the one sub judice.

That a lull in the storm of connubial infelicity is accompanied by a mere emotional consent to what is ordinarily a concomitant of marital felicity, or that such lull appears so great a relief from a course of cruel treatment that “submission” appears to be a means to the continuance of such relief, should not, it seems to me, stamp such emotional consent or such “submission” as condonation in every case and under all circumstances.

Moreover, our decisions are uniform in holding that con-donation of matrimonial offenses is conditioned upon the reformation of the offending spouse.

I find from all of the evidence in this case as well as from my observance of the parties on the witness stand that there was no legal condonation of the cruelties alleged prior to the last act of sexual intercourse, and that the acts subsequent to said intercourse taken in conjunction with the course of treatment of the petitioner by the defendant, as testified to by her witnesses, prior to that intercourse and over a period of some five years, warrant the granting of the relief sought by the petitioner.

I will advise a decree of divorce a mensa et thoro.


author: Caffrey, C. C. J.

text:
    COMMERCIAL CREDIT CORPORATION, A CORPORATION, PLAINTIFF, v. CHARLES HILD, CONSTABLE OF BERGEN COUNTY, JOSEPH COLANDO, TRADING AS JOE’S SERVICE STATION, AND JOHN DOE (THE PERSON IN WHOSE POSSESSION THE CHATTEL MAY BE FOUND), DEFENDANTS.
    Decided January 18, 1940.
    Por the plaintiff, II. Kermit Green.

    Por the defendants, Major, Bade Garisen.

   Caffrey, C. C. J.

This matter was partially tried before me in Bergen county. Later it came to me by way of stipulated facts. The stipulation is hereto annexed. Briefs and counter-briefs were filed and finally argued on December 28th, 1939.

Without repeating the stipulation of facts in its entirety, it is agreed that on November 10th, 1936, Sam Merlo and William Peters, Inc., executed a conditional bill of sale for the automobile in dispute. On the same day Peters, Inc., assigned the conditional bill of sale to the present plaintiff. This transaction took place in Hudson, New York, the situs of the parties and of the automobile itself. This conditional bill of sale was not recorded in Hudson, New York, nor any other place in the State of New York.

In a supplemental stipulation, sections 65, 66, 73 and 74 of the New York Personal Property law, which includes the Uniform Conditional Sales act, were offered as evidence in the cause. * * * The pertinent part of this summary is set forth in sections 65 and 66.

It will be noted that section 65 of the Personal Property law of New York makes conditional sales reserving title in the seller void as to purchasers or creditors of the buyer, who, without notice of such provision, purchases or acquires by attachment or levy upon, the chattel before the contract or a copy thereof is filed, as hereinafter provided, unless said contract or copy is so filed within ten days after the making of the conditional sale. Section 66 has to do with the place of filing.

The defendants in this cause rely on the non-compliance by the plaintiff with sections 65 and 66 as giving them superior title to the plaintiff in the automobile in question.

It seems to me that, in so far as the present controversy is concerned, the statute law of New York is not at all applicable or decisive. No stretching of doctrine of comity would justify the giving of extra-territorial effect to the statute law of New York. It follows then that the rights and liabilities of the parties hereto will depend upon the interest of the claimant and the defendants as of the time when the automobile was levied in New Jersey.

It will be noted in paragraph 3 of the stipulated facts that on December 10th 1936, the automobile in question was seized under an alias execution issued out of the Second Judicial District Court of Bergen county, wherein Joe’s Service Station was plaintiff and Merlo, the conditional vendee, was the defendant. The plaintiff herein, on December 15th, 1936, made a written demand for possession upon the defendant (stipulation, paragraph 4).

On December 22d, the sheriff of Bergen county seized the automobile by a writ of replevin on behalf of the plaintiff. * * * There was no recording or filing of the conditional bill of sale in the State of New York at any time before the seizure by virtue of the -alias execution issued by the District Court of Bergen county. * * *

It will be noted in the stipulated facts that on December 22d, 1936, within ten days after the levy under the alias execution on behalf of the present defendants and within ten days after plaintiff received notice that the automobile was in the State of New Jersey, a copy of the conditional bill of sale made in Hudson, New York, was filed with the clerk of the county of Bergen, the said county of Bergen being the filing district in which the automobile was physically located at the time of the levy. * * * This was manifestly done pursuant to our New Jersey statute, B. S. 46:32-20 (Public Laws 1919, chapter 210, section 14):

“When, prior to the performance of the condition, the goods are removed by the buyer from a filing district in this state to another filing district in this state in which such contract or a copy thereof is not filed, or are removed from another state into a filing district in this state where such contract or copy is not filed, the reservation of the property in the seller shall be void as to purchasers and creditors described in section 46:32-ll of this title, unless the conditional sale contract or a copy thereof shall be filed in the filing district to which the goods are removed, within ten days after the seller has received notice of the filing district to which the goods have been removed. The provisions of section 46:32-16 of this title regarding the duration of the validity of the filing and the necessity for refiling shall apply to contracts or copies which are filed in a filing district other than that where the goods are originally kept for use by the buyer after the sale.”

There was no proof offered as to the law of New York with respect to the right of a conditional vendor in the property sold under a conditional bill of sale. Therefore, to refer to the language of the late Chief Justice Gummere, in Thayer Mercantile Co. v. First National Bank of Milltown, 98 N. J. L. 29 (at p. 32); 119 Atl. Rep. 94, “In the absence of proof or agreement between the parties, the presumption is that these rights would be determined by the application of common law rules,” and at common law the ownership of the conditional vendor is paramount to the claims of creditors of his vendee, citing Wain v. Wain, 53 N. J. L. 429; 22 Atl. Rep. 203; Bodine v. Berg, 82 N. J. L. 662; 82 Atl. Rep. 901.

In Marvin Safe Co. v. Norton, 48 N. J. L. 410; 7 Atl. Rep. 418, our Supreme Court defined a conditional sale as a sale of personal property on credit with delivery of possession to the purchaser and a stipulation that the title shall remain in the vendor until the purchase price is paid. In the same case the facts show that one, Schwartz, purchased a safe from the Marvin Safe Company in Philadelphia under a conditional sale, by which conditional sale title remained in the Safe Company. Later, Schwartz transported the safe to Hightstown, where he resided, and, subsequently, sold the safe to Horton and delivered possession to him there.

Mr. Justice Depue held that, when Horton purchased the safe from Schwartz, he only acquired such title as his vendor had when he brought the property into Hew Jersey and, therefore, Horton took title subject to the reserve title in the Marvin Safe Company and as fixed by the law of Pennsylvania, the place of the original contract.

In Cole v. Berry, 42 N. J. L. 308, the Supreme Court held that delivery of possession under a conditional contract of sale, which stipulates that the goods shall remain the property of the vendor until the contract price is paid, will not pass title to the vendee until the condition is performed. See, also, Lane v. J. E. Roach's Banda Mexicana Co., 78 N. J. Eq. 439; 79 Atl. Rep. 365.

As a further answer to the defendants’ contention, Chief Justice Beasley, in Wooley v. Geneva Wagon Co., 59 N. J. L. 278; 35 Atl. Rep. 789, pointed out that, in so far as an original transaction is concerned wherein title is transferred by a conditional sale, the law of the situs of the goods at the time of the execution of the contract would prevail, and the original sale was good at common law; the Hew Jersey statute with respect to recording of the conditional sale would have no application.

The right of the defendants under the levy 'under the alias execution, of course, would be lawful or otherwise depending upon the acts of the parties with respect to compliance with the Revised Statutes, 46:32-20 above quoted.

It will be noted in the stipulation of facts, paragraph 7, the plaintiff herein made full compliance with that statute. This was in conformity with the ruling laid down by Chief Justice G-ummere in construing this statute.

In the case of Thayer Mercantile Co. v. First National Bank of Milltown, 98 N. J. L. 29; 119 Atl. Rep. 94, it was pointed out that a reservation of title in chattels which are removed from the place designated for the keeping in the contract of conditional sale can only be made effective under sections 5 and 14 of our Conditional Sales act (Public Laws, 1919) by filing a conditional sales contract or a copy thereof in the filing district in which the goods have been removed within ten days after the seller has received notice of such removal and of the place where they have been taken. See, also, Morey & Co. v. Schaad, 98 N. J. L. 799; 121 Al. Rep. 622.

The construction of sections 5 and 14 of the Conditional Sales act above referred to supports the plaintiff’s claim in that courts recognize the reservation of title of the plaintiff under the law of Hew York and will extend to it the protection of that right by compliance with the two sections just mentioned.

That the plaintiff company did all the things in keeping with the adjudicated rule in Hew Jersey there is no doubt. Therefore, the plaintiff’s claim is prior to that of the judgment creditor and it will be entitled to judgment for possession.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    JOHN E. KANTAKEVICH, PLAINTIFF, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Decided January 19, 1940.
    For the plaintiff. F. Burke Finnerty.

    For the defendant, John A. Laird.

   Brown, C. C. J.

The defendant moves to quash the summons and set aside the complaint in the above entitled cause or in the alternative refuse to entertain jurisdiction. According to the allegations in the complaint the plaintiff is a resident of Scranton, Pennsylvania, and the defendant is a corporation organized and existing by virtue of the laws of that state. In September, 1937, the plaintiff was injured at Scranton while crossing the railroad tracks of the defendant. It is charged the plaintiff at the time was using a pathway which because of its general use by the public became a “permissive crossing” under the laws of Pennsylvania requiring the defendant, in the operation of its trains over the crossing, to sound a warning to persons using the pathway. It is alleged the defendant failed in this duty whereby the plaintiff was injured. The summons was served on the defendant in the county of Hudson in compliance with N. J. S. A. 2:26-ii, a statute providing for the service of process on foreign corporations. The affidavit presented in support of the motion contains the statement that “practically” all the witnesses in the case, the number not being mentioned, reside in Pennsylvania; that neither New Jersey nor any of its citizens have any interest in the case; that no good reason exists for burdening the taxpayers of New Jersey with the expense of the litigation and delaying the trial of causes of its own citizens. It is also stated that if the cause is brought to trial, it will be necessary to bring four or five members of the defendant’s train crew from Pennsylvania to New Jersey for an extended period of time thereby requiring replacements; that it would likewise be necessaiy to bring civil engineers together with experts on the law of Pennsylvania from that state at great cost and inconvenience. It is further stated a similar case tried in this state consumed two weeks of time and four other cases of a similar nature are now awaiting trial in the courts of New Jersey, all of which will entail great expense to the taxpayers of our state. It is conceded in this case and clearly established by decisions of our appellate courts that the cause sub judice is a transitory action. Hale v. Lawrence, 21 N. J. L. 714; Ackerson v. Erie Railway Co., 31 Id. 309; Metcufskie v. Philadelphia and Reading Railway Co., 97 Id. 100; 116 Atl. Rep. 170; Kopenhafer v. Pennsylvania Railroad Co., 106 N. J. L. 530; 148 Atl. Rep. 629. It is interesting to note in the case of Gardner v. Thomas, 14 Johns. 134, which is cited by Chief Justice Beasley in the Ackerson case, the following appears: “But I am inclined to think it must, on principles of policy, often rest in the sound discretion of the court to afford jurisdiction or not, according to the circumstances of the case. To say that it can be claimed in all cases, as a matter of right, would introduce a principle which might, oftentimes, be attended with manifest disadvantage, and serious injury to our own citizens abroad, as well as to foreigners here.” In N. J. S. A. 2:27-19 it is provided that “a transitory action, shall, at the discretion of the court be tried in the county in which the cause of action arose, or in which the plaintiff or defendant resided at the time of the commencement of the action, or, if defendant is a non-resident in the county in which process was served upon him.” According to the decisions and statutes cited the motion to 'quash the summons and strike the complaint in this cause must be denied. As to the remaining ground upon which the motion is based, that is to say: “refuse to entertain jurisdiction” is a ground that does not appear to have been directly considered in decisions in this state. The contention is made that by N. J. S. A. 2:26-44 the legislature has declared the public policy of this state to be that not only can service of process be effected according to the provisions of that act but the trial court must under all circumstances proceed with the trial of the cause and is without discretion to refrain from exercising its jurisdiction. There does not appear in this statute any word or reasonable inference that can be drawn therefrom of any declaration of a public policy much less any restriction or limitation on the judicial discretion of the trial court. All the statute does is to provide a method of serving process on a foreign corporation. Camden Rolling Mill Co. v. The Swede Iron Co., 32 N. J. L. 15. In this connection it may be well to note that in the statute relating to transitory actions, N. J. S. A. 2 :27-19, specific reference is made to the court’s discretionary power in dealing with the question of venue. In any event there is nothing in our statutes or decisions, as far as this court can find, that impairs or limits the common law discretion of the trial court to refrain from exercising jurisdiction where injustice woxild otherwise result. The “privileges and immunities” clause of the Constitution of the United States is no longer an impediment on this point since the decision in Douglas v. New York, New Haven and Hartford Railroad, 279 U. S. 377. This case was similar in many respects to the one being considered on this motion. The court in the Douglas case speaking through Mr. Justice Holmes, said: “There are manifest reasons for preferring residents in access too often overcrowded courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the courts concerned.” The courts of the State of Hew York have long applied the practice of refusing, in their discretion, jurisdiction in transitory actions between non-residents and where the cause of action arose without the State of Hew York. Collard v. Beach, 87 N. Y. Supp. 884; Murnan v. Wabash Railway Co., 246 N. Y. 244. In Boright v. Chicago Railroad, 230 N. W. Rep. 457, Mr. Justice Stone in a dissenting opinion in referring to the New York State decisions stated: “The decision in the Douglas case is that the Supreme Court of New York has that power. Wholly immaterial is the source of the power— whether in common law, statute, or constitution. The important thing is, not where the power comes from, but whether it exists. There is no word in any decision of the New York courts, so far as they have been brought to our attention, to indicate that their discretionary power to dismiss comes from any statute or that any statute has anything whatever to do with it.” While the practice in our courts has been to deny motions and overrule demurrers in which it was sought to dismiss transitory action of the kind now being considered there appears no practice or policy established in New Jersey of denying the discretionary power of a trial court to refrain from exercising its discretion by refusing to proceed with the trial of such a case where to do so would be an injustice to any of the parties; particularly is this true where the remedy is more complete in the jurisdiction where the parties reside. Sielcken v. Sorenson, 111 N. J. Eq. 44; 161 Atl. Rep. 47; St. John, Inc., v. Dillon (Circuit Court), 62 N. J. L. J. 389. It is incontestably necessary to the effective performance of judicial functions that this discretionary power should be preserved and not denied. The court is mindful of the doctine announced in Hale v. Lawrence, supra, that our courts “will not feel themselves at liberty to deny process and jurisdiction merely from considerations of courtesy to such courts, or from motives of convenience to themselves or suitors.” The question of whether a trial court should refuse to exercise its jurisdiction where the reasons are cogent and clear involves more than comity, courtesy or the doctrine of forum non conveniens. It majr involve reasons which might be successfully advanced in cases between citizens of our state in our courts; an increase of judges and courts necessitated by an excessive influx of foreign litigation from other states and foreign countries attended by an unreasonable burden of expense upon the taxpayers of New Jersey and to the detriment of citizens of our state in having their cases tried; the prevention of vexatious practices in the trial of cases and to leave our trial courts their inherent right to see that justice is fairly administered and to encourage trials to be held in the forum where the remedy is more complete. It involves not only the right of a foreign litigant but also the remedy to be fairly and justly controlled. Stated more succinctly where the ends of justice clearly indicate that if a controversy tried in this state would result in an unfair burden upon and disadvantage to citizens of this state or that the controversy may be more suitably tried and the remedy more complete in another forum, then the parties should be relegated to that forum. A detailed and settled rule of procedure that would apply in every case is difficult if not impossible to state. It may be necessary to decide each case upon the facts and circumstances connected with the case. Viewed in the light of those considerations the facts presented on this motion do not convince this court that it should refrain from exercising its jurisdiction. To have a train crew travel from Scranton to Jersey City as well as the other witnesses mentioned is not an unreasonable interference with interstate commerce or a hardship on the defendant in view of present day conveniences for travel. As to a view by a jury of the locus in quo this would be a matter of discretion which is seldom exercised or necessary and from the proof presented it probably will be unnecessary in this case. Advances in the art of photography and the skill of engineers furnishes ample facilities for a fair presentation of the place of the occurrence. Concerning the factor of expense to the county of Hudson in the trial of the cause while an unusual number of transitory actions have been brought in that county lately, they are not so numerous or the burden upon the taxpayer so great as to move this court to grant the motion of the defendant.


author: Van Winkle, A. M.

text:
    Catherine O’Neill, complainant, v. Joseph L. O’Neill, defendant.
    [Decided August 25th, 1939.]

      Messrs. Melosh, Morten & Melosh, (Mr. Louis G. Morten), for the complainant.

      Messrs. Solomon & Miller (Mr. Abraham Miller), for the defendant.
   Van Winkle, A. M.

1. On this appeal, I am called upon to give my reasons for the Chancellor’s order of August 25th, 1939, made by him on my advice. First, I notice that counsel have made a stipulation of facts, which shows the salary and secured debts of the husband on two specified dates, and that, apparently, this stipulation is looked upon by counsel for the wife, as all that needs to be considered in connection with the petition of the complainant for an increase of support on this appeal. There are many other significant things not at all in any way reflected in this stipulation or contained in the complainant’s petition which T considered and which influenced me in the making of the order appealed from. Some of these things could hardly be expressed in a stipulation although they were facts. This appeal was not taken until near the end of the three-months appeal period ; but I have before me the files, not only the file of this suit, but also the file of a previous maintenance suit between these parties (Docket 98, page 353), my fragmentary notes made at the time support was fixed by the decree in this suit—and I have my memory.

It would take much writing to tell about all the things that properly had significance when I advised the order that has been appealed from. Some of these things are referred to or discussed herein, and I think sufficiently, but none of these things, except only the husband’s salary and proved debts, appear in the stipulation. I may say here, for example, and this is a very important thing, that on the same day the order appealed from was made, another order was advised by me under the decree made nearly five years before in the previous maintenance suit between these same parties, relating to vested arrearages under that decree.

The bill filed in this previous suit in September, 1933, disclosed that there had been theretofore eight proceedings in the domestic relations court, all having to do with the failure of the husband to pay toward the support of the wife; and it was alleged in the bill that the husband had abandoned the wife in January, 1930. The bill in the previous suit did not allege any cruel treatment, nor did the second bill, which was filed in March, 1938. Subsequently to the decree in the previous suit, made February 28th, 1934, contempt proceedings were brought more than once. Eight months after the first decree was made the husband was in arrears to the amount of $800, and at that time there were contempt proceedings based on these arrears. There were many promises to pay and continuances on orders which were made. There was an order for an execution. The parties got together some time after the decree in the first suit was entered, in a conditional and not fully consummated way as set forth in the second bill, but there was no reconciliation, as I understand, and upon the husband again leaving the wife the second bill for maintenance was filed. There was a contempt proceeding initiated under the first decree in August, 1938, and another in June, 1939. Contempt proceedings under the decree in the first suit and also under the decree in the second suit were before me contemporaneously several times on applications of the wife; and it clearly appeared that these applications needed to be dealt with together if my action was to be at all sensible and practical. New counsel came in for the husband. The defendant himself was before me a number of times in these contempt proceedings; and more than once I addressed him directly in strong language and warned and admonished him. An order authorizing a warrant for his commitment to jail was signed under the second decree in September, 1938. If a warrant had been immediately issued the husband would have lost his job and nothing would have been produced for the wife.

By signing the two orders on August 25th, 1939, one in the previous suit, and the other in the second suit which is the one appealed from, I got matters to what appeared to be a conclusion. I acted with practicality, and in the light of realism. I advised the two orders in part on the promise of the defendant, backed by the agreement of his new counsel, that he would assign a part of his salary, received by him as an employe of the city of Jersey City, to his wife, that the collectibility of amounts due and to come due to her under the second decree might be better assured to her. I then stated in open court that if the husband would execute such an assignment, I would not grant the application of the wife for an increase in the amount of support provided for her in the second decree. Each of the orders signed August 25th, 1939, had a bearing on the other. Both came out of the situation then existing. They involved the same thing, the wife’s support, and they need to be considered together. They hardly can be considered separately.

Judgments were entered against the husband in favor of icbanks,” “loan companies,” “finance companies,” “investment companies” and individuals, from time to time. I heard some new names. And he had made assignments of his salary, or parts thereof, voluntarily, and also under pressure. His salary was garnisheed, and he had general creditors from whom I heard from time to time. These creditors are not mentioned at all in the stipulation. Of course T needed to consider the judgments and assignments, for there was no proof of fraudulence, and the judgment creditors and the assignees were not parties to the proceedings before me.

This husband has been an undesirable husband over a long period, so far as money support for his wife was concerned, and he has been an undesirable debtor for third parties. He has been a difficult litigant; he has evaded service of papers; he made promises to the court that were not kept. But I had no right to increase the amount of support to be paid to his wife because of these things and thus punish him for them. However, I noticed all these things, and also I considered the apparent future difficulty of collecting from him under any decree or order, and I ascertained, as judges of this court so often do in matters of this kind, that putting him in jail as for a contempt, would destroy the source of his income. After all, a civil contempt proceeding is but a step in a cause. It is a collection proceeding. I realized that a failure to pay a greater sum than that provided by the decree probably would not result from contumacy, but from inability to pay. So, acting sensibly and realistically, I suggested the assignment of a part of his salary, of which assignment I have spoken; and thus, while nothing was added to the provision for payment in the decree in dollars and cents, that provision was given an additional value for the wife. These were some of the circumstances, and this was the kind of man I had before me when I advised the two orders of August 25th, 1939.

My notes, made at the time the second decree was made, indicate that, counting the amount for support provided for the wife as being' received by her, and including her wages and income and the husband’s salary and his secured debts to the extent that periodic installment payments were being necessarily made thereon, and leaving out of consideration his general indebtedness, the amount of which was not proved before me, the money result of the estimation for support was about $45.50 a week for the husband and about $41 a week for the wife. And, having in mind that the distinct objective in an alimony or support proceeding is the proper support of the wife, I could see no reason why the wife was entitled to have more from the husband by an order of this court, and I felt she could not collect more. The wife overlooked the right of the husband to discharge, in whole or in part, some or all of his secured debts by making payments in excess of the installment amounts arranged for. And the general creditors of the husband, about whom I heard from his counsel from time to time on the different hearings, were entitled to consideration. These parties had been in litigation many years over this one question, the support of the wife; and I considered the many difficulties that had been encountered, in collecting the amounts provided for support, the motions, the continuances, the contempt proceedings, the arrearages under the first decree, the husband’s many broken promises, and that sending him to jail for contempt, should I determine he was contumacious, would undoubtedly result in his discharge from his employment and the public would be compelled to support him. I sized up the whole situation. I knew that I should not be acting with common sense if I considered only the husband’s salary and his secured debts for the payment of which in installments it was claimed he had arranged. An order for the payment of money should not be a futile one. It should be made for amounts that are collectible with reasonable promptness. Many orders for alimony which have provided for what later turned out to be excessive amounts have arisen to plague the courts and the parties, as the judges of this court well know. Looking at an old report, I find Dr. Lushington speaking on this head: “In decreeing alimony in 1813 I have some recollection that Lord Stowell, upon being pressed to give a larger sum, observed that if he could think that the wife would be able to obtain it, he would make a more ample allowance, but that the allotment of two hundred pounds a year he considered would be more beneficial to her. And the difficulties she is stated to have experienced in respect of her alimony seem to bear testimony to the propriety of that decree.”

It was not contended at the time the order appealed from was advised that the wife was in need. She then was well employed, as she had been for a long time, by one of the large corporations of the country, and she had some additional income. But the wife thought that she was entitled to an increase, because, as her counsel orally contended, “the husband was the guilty party, and the wife’s wages and income should not be considered at all by the court, because that would be a rewarding of the husband;” in short, that the order for support should be a punishing order because the decree had gone against the husband. How counsel will formulate his contentions on this appeal I do not know, but I remember that he stated that our court of errors and appeals had not passed on the points involved in his contentions as I have just stated them, but I am constrained to say that my understanding is to the contrary.

There was no appeal from the amount of support provided in the decree in the second suit made May 11th, 1938. This appeal is only from the order made under the second decree which dismisses an application for increase in the amount of support provided by the second decree.

Knowing counsel’s contentions one may understand why he regards the bare stipulation that I have spoken of as an entirely sufficient base, in connection with the wife’s petition for an increase, for a consideration of this appeal by our court of errors and appeals.

As this appeal opens the whole subject of alimony and support, and as my duty and my desire are to express my several reasons for advising the order appealed from with decent completeness, these conclusions are longer than they would be if only one point needed to be considered.

2. We find in the opinions of the courts, when the parties to a matrimonial suit are designated, the words “guilty husband,” “innocent wife,” and other words of similar import. But these words are only designating or descriptive words, and they do not have, nor should they be held to have, any meaning or any implication affecting the amount of alimony to be allowed by this court in a divorce suit or the amount of support in a maintenance suit. I notice that the words “innocent wife” are used in an opinion of our court of errors and appeals in a case decided this year, but they are used only to distinguish the wife as the party who obtained the decree in the suit in which the opinion came. These words that I have mentioned and referred to are not used with any intent that our courts do punish, or that our courts have any right to punish, a husband, because a decree of divorce or of maintenance is in his wife’s favor. These words have come down to us from the ecclesiastical courts, where questions of moral delinquency were dealt with; but the decisions of those old courts, while interesting, have now no importance other than historical. Alimony law has an historical background, but in this country it has a statutory structure. More than fifty years ago our court of errors and appeals adopted an opinion of Vice-Chancellor Van Fleet in which he said: “This court can give nothing by way of punishment;” and the case he was then deciding was one where the facts were severely against the defendant husband who was morally delinquent. In a reported case, and in unreported cases, in this court, it has long been held that “excessive alimony cannot be awarded by way of punitive damages to penalize a defendant for extreme cruelty to his wife.” These words that I have mentioned, and other similar words, themselves have not any importance, nor have they any consequences, in a monetary way, on applications for alimony or support, nor have the situations which these words indirectly describe, any importance or any consequences bearing on the amount of alimony or support which should be ordered or decreed.

Our court of errors and appeals has held that “our courts interfere on the ground of cruelty to prevent future harm rather than to punish the offender for what he has done.” And, as an order for alimony is made only because of the making of a decree of divorce, the order is not to be a punishing order, because the decree is not a punishing decree. A husband who is a good father to his children may blunder into adultery. But adultery is one of “the shalt-nots” of the Decalogue, and this has enhanced its comparative importance in matrimonial litigation. In this court adultery must be proved as a crime is proved, that is, beyond a reasonable doubt. A brutal wife-beater may be considered by the court on an application for alimony to be a baser man than an adulterous husband, the facts of particular cases being considered. A despicable deserter of a frail helpless wife and little children may be, on such an application, considered to be as morally bad as an adulterous husband. If we go into these questions, if we seek to punish a “guilty” husband on an application for alimony, by giving more because he is “guilty,” we need to deal with moral questions, when our endeavor should be only to provide for the wife’s needs to the extent of the husband’s ability. And punishing orders, that is, orders for excessive amounts, are usually futile, and, of course, futile orders should not be made.

It would bo untrue, however, to say that the emotional reactions of judges to states of facts severely against “guilty” husbands have not been of influence in cases appearing in the reports, and have not increased the amount of alimony or support, especially when the orders or decrees have followed closely on a hearing on the merits of the divorce or the maintenance issues. And it cannot be denied that, judges being human, excessive amounts of alimony or support have sometimes been allowed in cases with facts severe against husbands. Our court of errors and appeals has recognized these situations in the few cases that have been brought before it, and has corrected the deflection toward liberality; and the work of that court has been easier because only a transcript is ever before that court and sobbing wives do not appear before that court.

With the changed social and economic position of woman, the right to alimony or support “should not be used as an instrument to punish a husband who is 'guilty’ in the matrimonial relation, but rather should relate itself definitely to the wife’s need,” as Professor Kelso, a student of the subject, has said; and he has said, further: “The difficulty which alimony seeks to solve is an 'economic question of reallocating the property out of which support should come during the married state to the circumstances of temporary litigation or permanent dissolution of the old relationship. To consider it a reward of merit for the virtuous, or as a punishment for the wrongdoer, is to misconstrue the premises.” 6 Law and Contemporary Problems (1939, No. 2) 195.

3. When the ecclesiastical courts first devised the equitable remedy of alimony the husband was called upon to support the wife, but only when she had no means of support and only in such case of need. If the wife had a separate income, the joint income of the spouses was made the basis for computing the amount of permanent alimony. Bishop’s Marriage, Divorce and Separation was published in 1891; and this textbook shows (sections 1012, 1013, 1016) what the practice in alimony and support had been for many years: “The wife’s income is, as explained in other connections, always an element in the alimony computation. The method is to add it to her husband’s, consider what under all the circumstances should be allowed to her out of the aggregate, then from the sum so determined deduct her separate income and the remainder will be the allowance to be given her. * * * Any other means possessed by the wife will be carried into the account, as, that in leaving her husband she took with her what is adequate. * * * The wife’s earnings and capacity to acquire must be taken into the account. * * * If the parties have been accustomed to toil for support and accumulations, the wife should not have an allowance so large as to relieve her from all necessity of exertion.”

Our court of errors and appeals has held that one of the elements in estimating alimony is “the separate property and income of the wife,” and in its decision it added that “any other factors bearing upon the question” are to be considered.

Our statute broadly recognizes that alimony in a divorce suit and support in a maintenance suit are contemporary problems. The making of an order for alimony or support involves not only legal considerations but social ones as well. While the order or decree is one for the payment of money, it should have a social quality and value, and the statute comprehends the making of such an order and such a decree. When a wife is gainfully employed, as complainant is, and is apparently in good health, and is to continue in her employment, with apparently a pension in prospect, and these things may be said of the complainant, she should be held to a continuance of her employment, in any estimation of alimony or support. Society is interested in her thus continuing, and the public of the community in which she lives is immediately so interested. It may be that her continuance benefits her husband in a money way, but this continuance also benefits the wife in more ways than one. And it benefits society, “the state,” and the public of her community. A judge who reads more than law reports knows this, and some profitable pages might be written here about this important feature, should I permit myself the space. This feature and some of the other features that I am mentioning in these conclusions have not been written about in our law reports, but there is an interesting contemporary literature on these features and other dependent or related features. Self-support, whether of men or women, is to be encouraged; and anything that makes for self-support, and is against dependence on the public, presently or prospectively, is not only to be encouraged, but is to have affirmative force in estimating and coming to a judgment on alimony or support. While the most important factors in estimating alimony are monetary—for, of course, without such factors there could be no order or decree for payment—there are many other factors or elements which are non-monetary, some of which, however, as a little consideration will show, may have monetary significance later. Some factors are intangible; and some are too often lost sight of, including the interest or right of the state in divorce and maintenance litigation—'“The state, which never formally appears as a party litigant, and is too often forgotten by the custodians of the law.”

4. There is a persistent attraction for the bar to the notion that permanent alimony in a divorce suit, and also support in a maintenance suit, should be settled at “one-third of the hus-: band’s income,” to the entire obliteration and undiscriminating exclusion of the many other factors that should be considered and which have more or less importance depending on the circumstances of particular cases. Always, “the circumstances of the particular cases” are the bases, so to speak, of an alimony or a support estimation. I think that, usually, there should be no difference between an estimation in a divorce suit and one in a maintenance suit, despite an old decision in this court which was approved by our court of errors and appeals, which decision, if completety followed, would always probably result in a less amount being allowed in a maintenance suit than in a divorce suit. That decision might have influence in exceptional maintenance cases, that is, cases where it appears likely that the parties may live together again if the court does not make the amount allowed for support “attractive” to the wife. And in a divorce suit, the concrete effect of the decree on property is to be considered. I remember this old decision was mentioned by counsel for the wife in this case. But it is to be said, first, that this old decision should not be applied abstractly, and if applied at all it should be applied only to an exceptional case, one where a likelihood of the parties again living together might be viewed as a reason why the amount should be settled on the basis of “a ternporary separation,” and so should be less. Next, I did not apply this old decision in this case because I think that these parties are permanently separated. And I should add that I regret to say that my experience is that such exceptional cases are proportionally so few as to be negligible. Of course this one-third notion has never been more than a guide. It is not a rule, even in a loose sense. And, so far as amounts of alimony and support to be provided by this court are concerned, there are no “precedents.” Our court of errors and appeals has decided that the only “standard” of alimony in a divorce suit is what “the circumstances of the parties and the nature of the case shall render fit, reasonable and just.” And in a maintenance suit the only “standard” is such an amount of support “as the nature of the case and the circumstances of the parties render suitable and proper in the opinion of the court.” This court is not bound except by the words and the intent of the statute and the decisions and opinions of our court of errors and appeals. Advisory Master Campbell spoke of this persistent attraction of the bar to this one-third notion as an overruling guide, in Williams v. Williams (1934), 12 N. J. Mis. R. 641 (at p. 645). In one case one-third of the husband’s income may be too little; in another ease it may be too much.

It must be said that the courts, in the past, without full consideration, have attached undue importance to this one-third guide, as the judges of this court well know. Paul L. Sayre, a student of the subject, editor of the Iowa Law Eeview, who told us, wdiat we all surely know, and what of course should be expected, namely, that “the basis for estimating alimony has significantly changed in the past few decades,” has spoken of this one-third notion in his paper “Divorce by Judicial Process,” 18 Iowa Law Review (1933), 501: “Now the courts, with carte blanche as to the awarding of alimony, seem to take the rough approximation of one-third of the husband’s income as an aggregate sum. On what basis this proportion was determined, nobody knows. Apparently, it wras based in part upon the general rule of inheritance that the wife will receive one-third of her husband’s property on his death. The common law rule in the case of absolute divorce was for the wife to receive maintenance only, and while the ecclesiastical courts gave her one-third or one-half, as we have noted, this was done on the basis of the continuation of the marriage and the continued enjoyment of the husband of his wife’s property.”

5. “Judicial discretion is probably nowhere more intimately connected with human relations, nor is it given freer reign, than in the field of domestic relations. Particularly is this true when applied to the question of alimony. The nature of judicial discretion, however, is such that the limits of its exercise cannot be fixed bjr definition.” “The Exercise of Judicial Discretion in the Award of Alimony,” by E. W. Cooej’, a student of the subject, in 6 Law and Contemporary Problems (1939, No. 2), 213.

While the limits of judicial discretion may be hard to define, judicial discretion itself is really easy to understand. We may get at its meaning negatively. Taking expressions from recent opinions of other-state courts we find it is not “manifestly unreasonable action;” not “a ruling which effects injustice;” not “action clearly against reason and evidence;” not the “whim or caprice of a judge, not his arbitrary will.” All of these are abuses of judicial discretion. And, in our own state our court of errors and appeals has decided that “difference of judicial opinion is not synonymous with abuse of judicial discretion.” . Negatively at least we know what judicial discretion is.

In exercising the discretion granted and indeed imposed by the statute in matters of alimony and support, the use of common sense is implied; surely it is not forbidden. There are no “precedents” of old or present courts that need to be followed. There are many things called, usually, “guides,” but even these are not strait-jackets. On no other head is flexibility so desirable as in alimony and support proceedings; and our statute recognizes this. In virtually all the American jurisdictions the amount of alimony and of support is left to judicial discretion. And the statutes are purposely vague so that full unrestricted discretion may be given. Our court of errors and appeals has decided that “there is no prescribed standard for the admeasurement of alimony;” and only this year that court decided that “The enforcement of the husband’s obligation is committed to the sound discretion of the court of chancery, guided by the statutory standard, that is, what in the special circumstances, is ‘fit/ ‘reasonable,’ and ‘just.’ ” Always, of course, “the special circumstances” are the bases for alimony estimation. One who reads on the subject finds that rather than there being any trend toward defining judicial discretion, there is a trend toward an undefined discretion without any restriction whatever, so that the courts may be enabled to act according to justice, with propriety. Of course the courts must act without willfulness or favor.

6. Advisory Master Herr gives a list of the factors or elements which have been considered by our courts in estimating alimony and in coming to a judgment thereon. 1 Herr, Marriage, Divorce & Separation 481-484. This list is the most complete list down to date to be found in any law book, but Advisory Master Herr gives the list, he says, and properly, “without suggesting that other elements may not be taken into account in certain cases.” Always, it is “the facts of certa in cases” that are to be considered, for, and this is always to be kept in mind, simple and obvious as it is, “no two cases are exactly alike.” I suggest that every day, in cases that are not being reported, the courts are considering elements not mentioned in Advisory Master Herr’s list, long and down to date as his list is, for his list, as he sajrs, shows only the elements in our reported eases. And then, when a judge of this court is considering elements, he knows that, if he is to act sensibly, in “a case of certain circumstances” that he should make a selection of elements, and, it may be, that he should give emphasis to one or more of the elements. There is not, necessarily, any precedence or equality of the elements in an alimony or support estimation. Undoubtedly, other elements than the ones usually named are constantly making their appearance, and other elements will appear in the future, and in the near future. The changed social and economic conditions of woman, coming not only from the Married Women’s acts and the “equal rights” laws, but also otherwise caused, and things not in the laws and not belonging there, have already strongly influenced the administration of alimony law. England has new divorce laws, which came into force last year, and the trend in England is toward equality between man and woman. It is understood there that “the interpretations of the Divorce acts are to be alike for men and women.” There, if a woman divorces her husband for his insanity she is to pay for his support if she has means and he needs support. In the old days, as the legislative divorce grew in popularitjq it became common practice for Parliament to insist upon a pecuniary provision for the support of the guilty wife, as a condition to granting a divorce to the husband. The English Judicature act of 1925 permits an order for alimony, “compassionate alimony,” to a “guilty” wife. In this country, there are organized endeavors to have laws enacted which shall provide that no woman under thirty-five years of age who has no child shall receive alimony unless it is shown that she is physically unfit to pursue any gainful occupation and that she has no income from other sources sufficient to maintain herself. In this state, usually, alimony is denied where the marriage has been of short duration, and the wife is of normal health, is self-supporting and there is no child. But, usually, where a wife is not self-supporting, her potential earning power is not counted upon. However, no matter what the near future may lay before us, it is to be said that under our statute with its purposely vague terms and its grant of full judicial discretion, all phases may be properly dealt with as they arise for consideration. But if husbands are to have orders or decrees for support from their wives, we will need statutory authority. Vernier & Hurlbut, so well known for their studies of American Eamily Laws, in their article of this year state as follows: “In 1886 two states had statutes allowing alimony to the husband, and there were three others which did not distinguish between the spouses in this regard. To-day the statutes in fifteen jurisdictions authorize the granting of alimony to the husband, and this does not include limited divorce statutes or statutes allowing the court to award part of the wife’s property to the husband unless the statutes expressly denominate such an award as alimony.” I am mentioning some of these things only illustratively; and I mention none of these things as showing any difficulty in the present administration of our maintenance statute in connection with cases having the subject-matter of this appeal.