author: Brogan, Chief Justice.

text:
    DOROTHY KLUBER, PLAINTIFF-APPELLEE, v. WILLIAM F. PFERDEORT, DEFENDANT-APPELLEE, AND B. K. SALES COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted May 4, 1937
    Decided July 28, 1937.
    Before Brogan, Chief Justice, and Justices Trbnchard and Parker.
    For the plaintiff-appellee, Luke A. Kiernan, Jr.

    For the defendant-appellee, Charles Becker.

    For the defendant-appellant, Franklin J. Marryott.

   Brogan, Chief Justice.

-The plaintiff below recovered a general judgment against both named defendants in the Essex County Court of Common Pleas. One of the defendants, B. K. Sales Company, Incorporated, appeals. The other defendant, William E. Pferdeort, does not.

The suit was .for personal injuries and the facts that concern us on this appeal may be briefly stated thus: Pferdeort was a salesman in the employ of B. K. Sales Company, Incorporated, which was engaged in the business of selling cemetery lots. On the date of the accident, July 9th, 1936, Pferdeort, accompanied by the plaintiff, was operating an automobile, just purchased by him personally, on North Arlington avenue in East Orange, New Jersey. The day was wet, the streets slippery and the automobile skidded, left the roadway and came in contact with a tree, causing the injuries for which the plaintiff seeks damages. The automobile was not the property of the defendant Sales Company, but the complaint alleges that it was being operated for and in behalf of the B. K. Sales Company. It was open to the jury to find, from the testimony, that Pferdeort, at the time of the accident, was engaged in the business of his employer, but the plaintiff, in order to succeed, had the burden of showing that she was a passenger in the automobile, at the invitation of the defendant B. K. Sales Company.

The grounds of appeal are twenty-one in number and are varied in character. We find it necessary to discuss only one of them, which is included in the motion made by the B. K. Sales Company for a nonsuit, on the ground that there was no evidence of invitation extended by the defendant B. K. Sales Company to the plaintiff, Dorothy Kluber. On the day of the happening and before he started on his mission to Belleville, N. J., Pferdeort purchased a second-hand automobile. Pferdeort was not possessed of a driver’s license but had a permit to drive. He asked the plaintiff, Dorothy Kluber, who is an aunt of his wife, to accompany him because she was a fully licensed driver and it was necessary to have such licensed driver with him in order to satisfy the requirements of the Motor Vehicle act.

How on the question of invitation, it cannot be disputed but that the jury was privileged to find under the testimony that Pferdeort had invited the plaintiff to go along with him, but in our judgment, the testimony fails to present any fact from which the jury might reasonably draw the inference that the plaintiff accompanied the defendant Pferdeort with the knowledge or at the invitation of the defendant B. K. Sales Company, or that the invitation which he extended and she accepted was within the scope or apparent scope of his authority. On this important element of the case Pferdeort, who was called as a witness for the plaintiff, said that he purchased the car in order that he might make more calls in his business as salesman and therefore earn greater compensation. He was asked whether he had “discussed that phase of the situation with Mr. Keats,” who was the sales manager. His reply was that whether he discussed it in detail he did not recall. He was further asked, on direct examination, what was the conversation between him and Mr. Keats with respect to the car, and he answered, “in general, there was quite a group around, P stated that I was going out to take delivery of the car, to get the car, and that my aunt planned to meet me and go with me, as I did not yet have a license, she being a licensed driver.” In reply to the further question as to what Mr. Keats said about that the witness answered, “I do not recall that he said anything.”

On cross-examination, on this point in the plaintiff’s proof, Pferdeort was asked this question: “You do not know

whether Mr. Keats even heard you make that remark, do you? A. I do not know.”

Taking this testimony in a light most favorable to the plaintiff’s case, we think it falls short of establishing a fact situation from which a jury might legitimately conclude that the defendant B. K. Sales Company either consented to, knew of, or acquiesced in the invitation extended by the defendant Pferdeort. There is no evidence that Keats said anything whatever to Pferdeort by way of consent about taking the plaintiff along in his car, or that he acquiesced in it, since Pferdeort testified that when he mentioned the matter he doesn’t know whether Keats heard what he said. In onr view, therefore, the defendant B. K. Sales Company was entitled to a nonsuit at the close of the plaintiff’s case, and the trial court’s refusal to grant this motion, when urged so to do on this particular ground, made for reversible error. The facts of this case aie not within the rule laid down in Paiewonsky v. Joffe, 101 N. J. L. 521; 129 Atl. Rep. 142, but rather within the decision of the cases of which Kiernan v. New Jersey Ice Co., 74 N. J. L. 175; 63 Atl. Rep. 998. is typical.

The judgment is reversed, as to the defendant B. K. Sales Company, Incorporated, and a venire, de novo allowed.


source: Caselaw Access Project

author: Barbour, C. C. J.

license: Public Domain

text:
    KATHERINE ZIEGLER, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF BALTHASER ZIEGLER, DECEASED, PLAINTIFF, v. HENRY MAURER & SON, A CORPORATION, DEFENDANT.
    Decided September 1, 1937.
    For the plaintiff, David T. Wilentz.

    For the defendant, Kellogg Chance.

   Barbour, C. C. J.

This matter comes on to be heard on defendant’s motion for determination of objection and point of law reserved in its answer to an amended complaint.

It is alleged in such amended complaint that plaintiff’s deceased was employed by defendant and that in the course of his employment he was instructed and directed to grind bricks which “caused fine particles of said bricks, like fine sand, to be thrown into the air” which “was taken into the lungs of plaintiff’s deceased;” that the air in the room or shop in which he worked was laden with such particles; that as a result his “lungs and bronchial tubes, and other parts of his body became congested and filled with said fine, sandlike particles” as a result of which he was unable to work, suffered great pain and anguish, and suffered serious bodily harm which resulted in his death.

Defendant filed its answer and reserved its objection and point of law, and now moves for determination thereof and judgment for the defendant on the ground so reserved, viz.: that the amended complaint states no cause of action, in that the same contains no allegations which would eliminate the cause set forth by the respective counts of the amended complaint, from the applicability of the statute of New Jersey, commonly known as the Workmen’s Compensation law, as supplemented and amended.

To this the plaintiff objects that by filing its answer defendant has waived the reservation and that it cannot now urge its point, and cites several cases.

Apfelbaum v. Fierce, 2 N. J. Mis. R. 1150; 126 Atl. Rep. 738, was on a motion to strike the complaint after answer filed.

DeVoe v. Delaware, Lackawanna and Western Railroad Co., 112 N. J. L. 35; 169 Atl. Rep. 637, was on a motion to strike a defense of contributory negligence after reply.

Township of North Bergen v. The Clinton Asphalt Co., 12 N. J. Mis. R. 22; 169 Atl. Rep. 818, was on a motion to strike the complaint after answer filed.

Dalton v. City of Hoboken, 12 N. J. Mis. R. 216; 171 Atl. Rep. 141, was on plaintiff’s motion to strike the answer as sham or frivolous and defendant’s motion to strike the complaint as not stating a cause of action, objection not having been reserved.

The present motion does not come under any of these cases, but is a motion for determination of an objection and point of law.

Rule 30 of the New Jersey Supreme Court provides:

Order of Pleadings. — The order of pleadings shall be:

1. Complaint;

2. Motion addressed to the complaint;

3. Answer;

4. Motion addressed to the answer;

5. Reply.

Rule 40 of the New Jersey Supreme Court provides:

Demurrers are Abolished. — Any pleading may be struck out on motion on the ground that it discloses no cause of action, defense or counter-claim, respectively. The order made upon such motion is appealable after final judgment. In lieu of a motion to strike out, the same objection, and any point of law (other than a question of pleading, or practice) may be raised in the answering pleadings, and may be disposed of at, or after, the trial; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case the court may give judgment for the successful party or make such order as may be just.

It is to be noted that in Apfelbaum v. Pierce, supra, the court said (at p. 1151) : “We construe these sections (rules 30 and 40) as requiring a motion to strike out a complaint to be made to this court (the Supreme Court) before an answer has been filed. After an answer has been filed the motion must be made at or after the trial before the judge to whom the cause has been referred for trial. The practice pursued in the present ease, if sanctioned, could be made most oppressive to a plaintiff and a means of obtaining a delay in the trial of an action.” In that case after it was noticed for trial at the December term at the Circuit and placed on the list, notice of motion was given for the February term of the Supreme Court.

In the instant case the amended complaint is dated May 6th, 1937, and notice of motion dated July 9th, 1937, returnable July 32d, 1937, before the judge to whom the cause has been referred for trial, being the next motion day scheduled and being two months before the opening of the next term after the amended complaint was filed.

It is apparent that the motion was not made as “a means of obtaining a delay in the trial” but rather to expedite the proceeding by having the objection and point of law determined during the summer recess of court and before the commencement of the trial. The wisdom of such procedure is shown by the fact that briefs have been filed showing considerable research on the part of both counsel and the court has been able to consider them at length, rather than be confronted with the necessity of making a hasty determination at the trial, which if then determined as I have now decided would place the plaintiff at a distinct disadvantage, to say the least.

If the language of rule 40 is to be given any meaning whatever it is certainly applicable to the present motion which is not a motion to strike a pleading but a point of law having been raised in the answering pleadings the court, on motion of the defendant, is asked to “determine the question so raised before trial, and if the decision be decisive of the whole case” to give judgment for the successful party.

I, therefore, conclude that the motion is timely and proper.

The gist of the objection is that the amended complaint does not show that the injuries complained of are not compensable under the Workmen’s Compensation act.

“In an action by an employe for injuries suffered in the course of, and growing out of, his employment, he must aver if he wishes to avoid the application of section 2 of the Workmen’s Compensation act, an agreement in writing, or a written notice given, such as is required by the statute, and what he was bound to aver as a cause of action he must prove, and if he fails in this, he has not made out his right to recover.” McNutt v. Adams Express Co., 94 N. J. L. 487 (at p. 490) ; 111 Atl. Rep. 13.

Plaintiff relies on Smith v. International High Speed Steel Co., 98 N. J. L. 574; 120 Atl. Rep. 188, which held that a disease was described in the complaint, that it was not the result of an accident.

Counsel for the plaintiff says the allegations in the complaint have been copied almost verbatim from the Smith case pleadings. At that time (March, 1923) the Workmen’s Compensation act provided only for injuries resulting from accident and, therefore, there was a sufficient allegation to show the injuries were the result of disease and not covered by the act.

It was not until one year after that decision that certain occupational diseases were made compensable under the Workmen’s Compensation act by supplement thereto approved March 11th, 1924. Pamph. L. 1924, ch. 124; Gum. Supp. Comp. Slat. 1911-1924, p. 3883, § **236-26.

It would, therefore, appear that the Smith case does not now apply and that it is necessary to aver and prove such injuries as are clearly not covered by the Workmen’s Compensation act.

While in the Smith ease the allegations were sufficient to show a disease and not an accident it now becomes necessary to aver and prove such facts as will show the disease is not one made compensable under the act, which may be done by naming the disease or by setting forth the composition of the particles complained of so that it is clear none of the compensable diseases would result.

This would be decisive of the whole case were the amended complaint to stand as it now is but in my opinion the plaintiff should be permitted to further amend her complaint in accordance with the foregoing views so that the case may be tried on its merits when reached. Accordingly, leave is given to further amend the complaint not later than September 11th, 1937, or in default thereof judgment for defendant will be entered. Defendant should answer such amended complaint within ten dajs thereafter so that the case will be properly at issue on the opening day of the September term.

Motions addressed to the amended pleadings may be noticed for September 16th, 1937, at the court house.


text:
    KATHERINE ZIEGLER, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF BALTHASER ZIEGLER, DECEASED, PLAINTIFF, v. HENRY MAURER & SON, A CORPORATION, DEFENDANT.
    Decided September 27, 1937.
    For the plaintiff, David T. Wilentz.

    For the defendant, Kellogg & Chance.

   Barbour, C. C. J.

This matter came before the court on motion for determination of objection and point of law addressed to the amended complaint, and upon the determination being made plaintiff was given leave to amend her complaint which she did by filing a second amended complaint setting forth facts to show the injury complained of was not compensable under the Workmen’s Compensation act, to which defendant filed its answer reserving objection and point of law, motion for determination of which being now before the court. Pending the hearing reply was filed and motion addressed to the reply is likewise now before the court.

Disposition of both motions may be readily made together as the objections and points of law are substantially the same.

The second amended complaint does not set up a new cause of action but amplifies that which ivas set up in the first amended complaint by setting forth facts to negative the applicability o£ the Workmen’s Compensation act in accordance with the determination theretofore made. The same wrong is alleged with respect to the same transaction, no new party is added, and, in fact, the recitals are the same except to amplify the prior pleading by negativing the statute.

“It is quite generally held that if the identity of the transaction forming the same cause of action originally declared upon is adhered to, an amendment is not ordinarily regarded as substantially changing the plaintiff’s claim or stating a new or substantially different cause of action. So an amendment will not, as a rule, be held to state a new cause of action if the facts alleged show, substantially, the same wrong with respect to the same transaction, or if it is the same matter more fully and differently laid, or if the gist of the action or the subject of the controversy remains the same; and this is true although the form of liability asserted, or the alleged incidents of the transaction, may be different. Technical rules will not be applied in determining whether the cause of action stated in the original and amended pleadings are identical, since, in the strict sense, almost any amendment may be said to change the original cause of action. 49 C. J. 510, 511.” Magliaro v. Modern Homes, Inc., 115 N. J. L. 151 (at p. 157.)

“In the early days of our jurisprudence many actions were brought to a summary conclusion by reason of mistakes as to form. These decisions resulted frequently in miscarriages of justice. The only meritorious result of dismissing suitors on technicalities was to create a bar adept in the science of pleading. For many years the trend has properly been in the other direction. The aim of courts and legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried.” Wilson v. Dairymen’s League, 105 N. J. L. 188 (at p. 190); 143 Atl. Rep. 454.

I, therefore, determine that the second amended complaint was authorized by the order made in this cause on September 3d, 1937, and does not set forth a new cause of action and to the extent that it sets forth a cause of action accruing within two years prior to the commencement of suit it should stand.

So far as acts of negligence accruing more than two years prior thereto are concerned plaintiff is barred and cannot recover. The second amended complaint may be amended so as to allege only a cause of action accruing within such period, which amendment may be made by proper notation in the record at the trial or prior thereto, the answer and reply to be likewise amended, so that the merits of the controversy may be fully tried.

This likewise pertains to the point that at one or more places in the second amended complaint plaintiff is erroneously described as to her representative capacity.


author: Pee Cubiam.

text:
    C. V. HILL & COMPANY, PROSECUTOR, v. AUGUSTUS N. DRAKE, RESPONDENT.
    Decided September 22, 1937.
    Before Justices Case and Botone.
    For the motion, Nathan N. Schildhraut.

    Contra, George E. Meredith.

   Pee Cubiam.

This is a motion to retax the costs in No. 217, October term, 1935. From all that appears, the costs have been properly taxed, but it also appears that the employe paid $263.01 for the use of twenty copies of the state of the ease in order to prosecute his appeal to the Court of Errors and Appeals. The record had been prepared by the employer for use in the Supreme Court. If this payment is not credited upon the judgment, the employe not only pays the total cost of the record but the employer is further enriched to the extent of $263.01 already paid by the employe for the use of the state of the case. This sum of money should be credited on the judgment in order to prevent unjust enrichment. And such will be the order of the court.


author: Per Curiam.

text:
    WILHELM PITSCH ET AL., PROSECUTORS, v. J. BLAUVELT HOPPER, SURROGATE, ETC., ET AL., RESPONDENTS.
    Argued June 25, 1937
    Decided September 28, 1937.
    Before Justices Lloyd, Case and Donges.
    For Mary Help of Christians School for Orphan Boys, and The Institute for the Blind Sisters of St. Joseph of Peace, &c., Catholic Orphan Asylum (St. Joseph’s) for Boys, William J. Morrison, Jr.

    For the executors and Paul H. Yoegeli, guardian, Frank II. Hennessy and Hulst, Uennessy, Mowry & Widnall.

   Per Curiam.

This is on motion to vacate the allocatur of a writ of certiorari applied for and allowed April 1st, 1937, to review a surrogate’s order of probate made August 1st, 1935. The statutory limitation to review a court order by writ of certiorari is eighteen months. 1 Comp. Stat., p. 403, § 3. This court recognizes that limitation to the extent that it is reasonable in a given case. Red Oaks, Inc., v. Dorez, Inc., 117 N. J. L. 280; 187 Atl. Rep. 737. The period of eighteen months from probate expired on February 1st, 1937. We are satisfied that with reasonable expedition a writ to review the probate could have been sought well within the statutory period.

Prosecutor would raise the question of jurisdiction of the surrogate to probate, alleging that there were doubts on the face of the instrument and that thereupon it became the duty of the surrogate, section 13 of the Orphans Court act (3 Comp. Stat., p. 3816, as amended, chapter 370, Pamph. L. 1931; N. J. Slat. Annual 1931, § 146-13), to cite the parties to the Orphans Court — there to try the issue. But the Court of Errors and Appeals has already considered this will (Christian Orphan Home v. Guaranty Trust Co., 121 N. J. Eq. 257; 190 Atl. Rep. 103) and determined the question of doubt arising on the face of the instrument contrary to prosecutor’s contention.

The motion to vacate will be granted, with costs.


author: Melko, D. C. J.

text:
    Perth Amboy District Court.
    MARTIN TURK AND ELIZABETH TURK, PLAINTIFFS, v. VALENTINE LEITNER AND ANNA LEITNER, DEFENDANTS.
    Decided September 22, 1937.
    For the plaintiff, David I. Stepacoff.

    For the defendants, Jacob L. KarTcus.

   Melko, D. C. J.

On May 12th, 1937, plaintiffs instituted suit against defendants, Valentine Leitner and Anna Leitner, on a note, copy of which is as follows:

“Perth Amboy, N. J., May 9th, 1935.
. . Two years. after date . we. . promise to pay to the order of Martin Turk and Elizabeth Turk. .$547.50. Five Hundred for'ty-seven 50/100. .Dollars with interest.
At the First Hational Bank of Perth Amboy, N. J.
Valentine Leitner.
Mrs. Anna Leitner.”

Plaintiffs waived any excess over $500. On the return day, May 21st, 1937, a “no appearance” was taken as against defendant Valentine Leitner and on May 27th, 1937, affidavit filed and final judgment for $500 and costs was entered in favor of plaintiff and against Valentine Leitner.

On August 25th, 1937, the matter came on for trial as to defendant Anna Leitner, at which time two defenses were interposed, one that there was no consideration and the other that final judgment had already been entered on the note in question and that the action was merged in the final j udgment.

When a note is made such as the one which is the subject of this suit and signed by two makers, they are presumed to be jointly liable and there is nothing in the proof to rebut this presumption, and it is held to be a joint obligation.

The New Jersey Practice act (Cum. Supp. Comp. 8tat. 1911-1924, p. 2817, § 163-296) provides that the court may control judgments as against several plaintiffs and several defendants, and

“When a complaint or a cause of action is sustained in favor of, or against only a part of the parties thereto, judgment (interlocutory or final) may be rendered in favor or against such parties respectively at any stage of the proceedings. But an unsatisfied judgment against one or some of several joint contractors shall not discharge any other joint contractors from liability on the contract * *

I feel, however, that the purposes of this act do not apply in the case of a joint obligation but that the decision of Coles v. McKenna, 80 N. J. L. 48; 76 Atl. Rep. 344, and Leonardis v. Freda, 8 N. J. Mis. R. 887; 152 Atl. Rep. 239, are controlling, in which it is held:

“In an action brought against four defendants jointly, the plaintiff cannot split up his cause of action by entering a judgment final against two defendants by default and subsequently enter judgment final after verdict against the other defendants. The proper course is to enter interlocutory judgment against those who default, and the venire is then special as well to try the issue, as to inquire of damages.”

Where a judgment final is entered, the original cause of action is merged in the judgment, and, in the case of a joint debt, whatever merges the cause of action as to one merges it as to all.

Judgment therefore shall be in favor of the defendant Anna Leitner.


author: Van Winkle, A. M.

text:
    Ethel V. Cohen, complainant, v. Harry E. Cohen, defendant.
    [Decided October 4th, 1937.]

      Mr. Alex R. DeSevo, for the complainant.

      Mr. Sol F. Feuer and Mr. Abraham Nabovitz, for the defendant.
   Van Winkle, A. M.

The final decree, which includes a provision for the payment of $25 a week to complainant, was entered in this maintenance suit in June, 1936, on a bill which was filed in June, 1929. In June, 1937, defendant filed his petition for a modification so that the amount should be made $15 a week, which amount he has been regularly paying; and his claim is that he is unable to pay more. There are also arrears due under orders for the payment of alimony pendente lite. A petition praying that defendant be adjudged in contempt for failure to pay up to the full amount provided in these orders and for failure to pay up to the full amount provided in the final decree had been denied because of the facts shown by affidavits filed, the application being heard on affidavits by consent, it appearing that defendant was unable to pay $25 a week and that $15 a week was all that he could pay. If defendant had the ability to pay the sums he has not paid it seems that execution would have compelled the payment. See 1 Comp. St,at. (Chancery act) pp. 425, 4-36 § 44J White v. White, 94 N. J. Eq. 278, 120 Atl. Rep. 419. If an execution would have produced nothing more than defendant was regularly paying it should be said that the orders for the payment pendente lite and the order for payment in the decree should probably not have been made to the amounts specified, because of the absence of a factual basis.

Oral testimony of the parties and their witnesses was taken on this application for modification; and I must hold that there is now no factual basis for an order for more than $15 a week. Defendant’s earnings are virtually the same, it is claimed by complainant’s counsel, as they were when the provision presently in force was made, and he contends that the court should not reduce the amount presently provided because of the holding in Rigney v. Rigney, 62 N. J. Eq. 8 (at p. 13); 49 Atl. Rep. 460, which is that an application must exhibit changed circumstances and new facts which have arisen since the order, and that to succeed on such application there must be clear proof of such new facts and circumstances as would justify and require a variation in the amount of alimony allowed. There was testimony that complainant, who is comparatively young and apparently in normal health, is, and has been for sometime employed, and, inferentially, gainfully employed, by a relative in his liquor store. While the testimony on this head was not precise, it was cogent; and I believe from the testimony that complainant has been, from a time after the provision now in force was made, gainfully employed. Complainant denied that she was so employed, but the relative was not produced at the hearing. If complainant is so employed the prerequisite requirement of the holding in Rigney v. Rigney, is met; and a consideration of all the circumstances leads to the granting of defendant’s application to reduce the amount of support to $15 a week.

However, I should not dispose of this application without saying that I do not follow the holding in Rigney v. Rigney, above herein mentioned, in considering applications for modification of provisions for alimony in divorce suits or for modification of provisions for support in maintenance suits. I say this because on some motion days Rigney v. Rigney is cited by counsel, oftener than once, on applications for modification.

Rigney v. Rigney, a divorce suit, was decided in 1901, and the application for modification in that suit was considered in connection with the provisions of the Divorce act then in force. The present Divorce act has a provision respecting orders for alimony in divorce suits which was not in the act in 1901, that is to say, “orders so made may be revised or altered by the court from time to time as circumstances may .require.” Rev. of 1.907; £ Comp. Stat. 1910 p. £035 § &5, amended P. L. 1933 ch. 145 p. £96; N. J. Stat. Annual 1933 § 6£-£5. The comparable provision in the present Divorce act relating to maintenance suits gives the court the authority, and, I think, imposes on the court a duty, “from time to time to make such further orders as shall be just and equitable” (section 26).

The holding in Rigney v. Rigney does not now apply to applications for modification under the present Divorce act. The restriction imposed by its holding is not found in the present act with relation to applications for modification in divorce suits or in maintenance suits, and the court should not impose any such restriction on itself. A thing which in equity ought to be done because of the facts, and which may be done under the statutes of the state, should be done, of course. The holding in Rigney v. Rigney was induced by the facts of that case, which were severely against a contumacious husband. I perceive no reason for adopting the holding in Rigney v. Rigney on applications for modification in divorce suits or in maintenance suits, simply on the basis of its being a good holding. An application for modication should be decided in accordance with the very right of the matter at the time it is before the court for disposition. This is no moro than saying that such an application should be decided in accordance with equity and good conscience.

This holding in Rigney v. Rigney was cited by counsel in Williams v. Williams, 12 N. J. Mis. R. 641; 174 Atl. Rep 423, where Advisory Master Campbell was considering an application ior modification, and 1 note that he decided the application in accordance with equity and good conscience.

In considering an application for modification this court should be as responsive as possible, and it should not hamper itsell with a restriction which is not imposed by the Divorce act and which is not necessarily equitable. II there should be a preliminary inquiry to ascertain if there are “changed circumstances and new facts,” then if equity is to be done it would also be proper to inquire whether the order sought to he modified had been based on facts or only on assumed facts. Apparently Advisory Master Campbell had this thought in mind when he remarked, in deciding Williams v. Williams, supra, that no one had appeared for the defendant at the time the order sought to he modified had been made, and that the defendant had not submitted himself to examination before the vice-chancellor who made the decree.

The “propriety” of a decree of divorce or for maintenance is not called in question by an application for modification of the order for payment which happens to be contained in the decree. The decree itself as a decree on a cause of action, for divorce or for maintenance, as the case may be, remains undisturbed. So far as a decree of divorce is concerned the order for alimony in it is only an “incident” of the judgment, as Bishop has said.

To apply the holding in Bigney v. Bigney to applications for modification means that the court needs to examine the testimony on which the order sought to he modified was made, that the court may be satisfied with respect to “changed circumstances.” In most cases such testimony is not available. Often the testimony was given in the course of a final hearing, and it has not been preserved. More than once I have been detained, while I sought, without success, to ascertain the basis of an order for payment made some years before.

The decree in a maintenance suit usually contains a provision, which, however, is not found in the decree in this Cohen case, to the effect that either party — sometimes only the complainant is mentioned — may apply, upon a future change of circumstances for a modification concerning the support of the complainant, as may be just and equitable. I surmise that this provision in the form of decrees in maintenance suits came from a notion that the holding in Rigney v. Rigney applied to maintenance suits. Such a provision in a decree does not restrict the parties nor the court, for it is the statute, and not the decree, which governs applications for modification. As Vice-Chancellor Bigelow pointed out: “The court cannot divest itself of the authority and the duty to make further orders touching the support of the wife as may be just and equitable.” Baumgarten v. Baumgarten, 107 N. J. Eq. 274; 151 Atl. Rp. 606.

An order, for instance, may be made directing a man to pay a specified sum each week, although the man is unemployed or only partially employed, his potential earning power being considered and counted upon. A year passes, and the man’s potential earning power, without his fault, has not produced any money, and he has been put in debt by the order. An. application is made for a modification. What then? I suppose it may be said that there has been a change in the circumstances of the parties just because the man has been put in debt by the order; but why indulge in subleties ? Are the circumstances of the parties the same at the end of the year, under the holding in Bigney v. Bigney? Why should the court enter upon such an inquiry? Obviously, the equitable thing to do is to settle a new order, and it may be, later on, another order, that both parties may have the full benefit of the circumstances existing at the time the court makes an order, and this without reference, necessarily, to the facts or reasons on which a previous order was made, and with no restriction on the court growing out of a previous order, so far as its continuance is concerned.

•No order for support should continue in force for its full amount where it is clear that the man cannot pay to the full amount. Unpaid sums accrued under an order which happens to be in a decree of divorce are vested in the wife and may not be discharged merely by an unconsented-to-order of the court. And, in my view, past due alimony accrued under an order for alimony to be paid pendente lite in a divorce suit is vested in the wife just as past-due alimony under an order for alimony which happens to be included in a decree of divorce is vested. I have found that a wife will accept less than full payments under an order for the payment of alimony pendente lite for a long period where the husband is regularly paying what he can pay, seemingly not at all caring to get, and perhaps not desiring, a final decree, and then, suddenly, application is made to have the husband adjudged to be in contempt. Orders that are reasonably certain to be futile, or not availing to their full extent, should not be made, but many such orders have been made through the years, both pendente lite and in decrees, and some of such orders are still in force. Futile orders should not be continued, no matter what the circumstances of the parties were when the orders were made.

My chief concern is that this court shall do equity; and in what I have said I have had in mind, of course, only meritorious applications. Applications for modification, whether for increase or decrease, which are without merit will be discouraged, and 1 should add that they will turn out to be troublesome activities for applicants.

° The sums due and accrued under the present order in the decree and under the orders for alimony pendente lite may not be discharged; but an order may be entered reducing the weekly payment to $15 from this time forward.


author: Pee Curiam.

text:
    EDWARD P. STOUT, PLAINTIFF-RESPONDENT, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.
    Argued May 5, 1937
    Decided September 23, 1937.
    Before Brogan, Chief Justice, and Justices Teenchard and Parker.
    For the defendant-appellant, Alfred Brenner.

    For the plaintiff-respondent, John Drewen (Drewen <£• Nugent, of counsel).
   Pee Curiam.

This suit was brought by the plaintiff, an attorney and counselorrat-law of this state, to recover the reasonable value of legal services rendered by him to the defendant, the city of Bayonne, in the prosecution of writs of certiorari and in an appeal before the state board of taxes and assessments for the increase of the assessed valuation of second-class railroad properties within the city, being twenty-nine separate "parcels owned by various railroads within the city.

The city’s object in this litigation was to gain an increase in such valuations of at least $500,000 over and above those originally assessed by the state board of taxes and assessments on these properties for 1930.

In January, 1931, authorization was given to the plaintiff by resolution of the city commission to review by certiorari the final determination of the state board in respect to the 1930 assessments and to prosecute the same to final judgment, and expressly agreeing to pay Edward P. Stout, the plaintiff herein, just compensation therefor. In May or June, 1931, and again in January, 1932, as a result of conferences with the plaintiff, the mayor and director of revenue and finance and the head of the city’s law department (which it was admitted he was) engaged the plaintiff to continue his efforts to accomplish the purposes aforesaid by review by certiorari of the state boards’ assessment for 1931, in connection with litigation relating to the 1930 assessment, which was still pending, and in January, 1932, necessary petitions for writs to review the 1931 assessments were signed and sworn to by the mayor, and the two groups of cases were presented and argued in the Supreme Court at the same time. At such conferences a policy was agreed upon, and incidentally in January, 1932, the plaintiff was engaged to appear, if necessary, before the state board on complaint of the city against the 1932 assessments, and that necessity arose and the plaintiff so appeared, the object always being to bring the assessments to the figure of $500,000 in excess of the original assessments of 1930, the reason being not only to gain the aggregate increase in itself, but to have these railroad properties valued for tax purposes on a par with other industrial properties contiguous thereto.

Tire plaintiff performed all of these services for which he was engaged, and as a result, the city’s purpose was accomplished.

The failure of the city to compensate plaintiff resulted in this suit brought by the plaintiff in which the jury rendered a verdict of $12,500, and the city appealed.

Incidentally it appeared that the necessity of the employment of the plaintiff was that the city had “a very sick city attorney at the time, who was not able to carry on the work.”

The first point made by the city is that the trial judge erred in refusing to grant a nonsuit and in refusing to direct a verdict for the defendant.

We think the action of the trial judge was proper.

The city argues that the “plaintiff did not, prior to the suit, present a detailed bill of items or demand, specifying particularly how such bill or demand is made up.” But our examination of the bill of items satisfies us that there was certainly a substantial compliance with the requirement of the statute in such cases, which requirement was that there should be presented “a detailed bill of items' or demands specifying particularly how such bill or demand is made up.” 3 Comp. Siat., p. 3665.

The defendant also argues that the motions should have been granted because there was no proof of plaintiff’s presentation of the bill to the city authorities.

We think there was proof from which the jury could and did infer that the bill was presented to and received by the duly constituted authorities of the city. There was, therefore, an issue of fact on this point, and it was properly submitted to the jury.

It is next argued that the motions should have been granted because “there was no proof of approval or disapproval by the mayor nor an order by the governing body for the payment of the claim.”

But there was proof from which the jury might and did infer that the claim was presented to the mayor for his approval or disapproval as required by the statute (chapter 152, Pamph. L. 1917), and the action of the mayor in neglecting or refusing to approve the bill was in legal effect tantamount to disapproval.

It is next said in effect that the motions should have been granted because the engagement of the plaintiff as special counsel by the mayor without a supporting resolution was without authority. We think there is no merit in this argument. It ignores the original resolution. Moreover, the engagement of the plaintiff as special counsel for the city was within the corporate powers of the governing body. Even if it be conceded (which we do not concede) that the mayor and the diréctor of finance was without authority to conclude such engagement without resolution of the commission, it is nevertheless true that the services were actually rendered, and that the city acquiesced therein, and that in the very nature of these services and what they achieved in the increase of its tax ratables the city cannot possibly avoid a ratification of the result. That plaintiff’s compensation was not fixed by the terms of his engagement is of no moment, since the law allows him the right to recover on a quantum meruit. All the elements of a lawful claim against the city are thus presented. Potter v. Metuchen, 108 N. J. L. 447; 155 Atl. Rep. 369; Byrne v. Wildwood, 95 N. J. L. 287; 112 Atl. Rep. 305. It cannot be disputed that the very nature of the services rendered and of the result accomplished by plaintiff for the city, leaves the city no alternative but to accept the result and thus to ratify the services that procured it. For the city to do otherwise would be to repudiate the judicially established basis for the calculation of its increased tax against the railroad companies mentioned — an impossible proposition. The city could not avoid a ratification of what plaintiff has done for it, even if it might wish to.

It seems to be further argued that the plaintiff’s claim was barred by the statute of frauds. This claim seems to be based upon the contention that the engagement of the plaintiff as to a part of his work rests exclusively from the earlier conference in May or June, 1931. It ignores the testimony to the effect that in January, 1932, in conference respecting the review of the 1932 assessments, the plaintiff was told by the mayor "whatever you think necessary, go ahead;” and it would seem that considering the objective of the city and the uncertainty as to when plaintiff’s engagement could be performed, and the likelihood that it could not be ended within a year, the claim was not barred by the statute; for an oral promise which may not be performed within a year, and which in fact is not so performed, does not come within the ban of the statute, if full performance may bo had within that time. Reynier v. Associated, Dyeing and Printing Co., 116 N. J. L. 481; 184 Atl. Rep. 780.

Tt is also said that a direction of the verdict should have been had because of the alleged resignation of the plaintiff in inspect to his employment.

Our examination of the evidence in respect to this matter discloses that the letter upon which the contention rests had no relation whatsoever to the matter of plaintiff’s employment in question.

The next point is that the judge erred in allowing the interrogation of a witness as to collateral matters and the introduction of evidence for the purpose of refuting testimony as to collateral issues.

We have examined the record in view of this objection and find that the examination in question was for the purpose of showing the city’s lack of good faith in resisting the plaintiff’s claim, and for the purpose of showing motive and interest, and to test accuracy, veracity and credibility of the witness; and we find no prejudicial error.

Lastly it is said that there was prejudicial error in the charge of the court respecting the so-called burden of proof.

• We think there was not. The evidence was all in and the case was being presented to the jury for determination, and obviously there was no longer any question as to the burden of proof, so far as that term is concerned with the order of production of evidence; but at that stage the question arising from the rule as to burden of proof in its true sense, and the obligation of the plaintiff to make out his case by the required quantum of evidence, was evidently in the judge’s mind as of the utmost importance for the consideration of the jury.

The judge had' already properly charged that the burden was on the plaintiff to prove every material allegation in his case. The charge objected to was that “the burden of proof is upon the defendant to satisfy your minds that the charge made is exorbitant and in excess of the reasonable value of the services.”

It seems to us that what the judge had in mind in thus charging was the plaintiff’s undisputed proof as to the reasonable value of his services, and no doubt the jury so understood it. That proof the trial judge properly and accurately characterized in connection with that portion of the charge now challenged. He said: “During the course of the trial a prominent member of the bar has appeared here as a witness, Mr. Albert O. Wall, very well known to the court as well as to counsel, a man of a great many attainments and parts; and lie has testified that the charge [$12,500] that was made is a fair and reasonable charge. As against that the city has not produced one iota of testimony to the contrary. You have the right to give to that failure on the part of the city such weight as you think it merits in the light of all the surrounding facts and circumstances. Of course that does not necessarily mean that that should be or must be all-controlling. That is for you to determine, whether they could or could not answer it. You can be guided by what Mr. Wall says, or you do not need to be. You have the right to give full weight and credit to his testimony, or you have the right to reject it, or you have the right to accept it in part and reject it in part. Your judgment is supreme.”

Yow we point out that the record shows not only that there was no contradiction or qualification of Mr. Wall’s testimony. It also showed an eminent fitness upon the part of Mr. Wall to judge as to the value of the services, and that Ms testimony justified fully and in extenso Ms estimate of $12,500 for the work accomplished as “unquestionably a reasonable and moderate charge.” The defense saw fit to thus leave the matter without a word of contradiction or qualification. Incidentally, there was abundant proof that the plaintiff was well qualified by long and large experience in the particular field to conduct the litigation in which he was employed and successfully completed.

If any fault is to be found with the charge in question we are unable to see how it could conceivably have had the slightest prejudicial effect upon the defense. The judge did not direct a verdict. Far from it. He left to the determination of the jury the effect of the evidence, and permitted them to find a verdict either for the plaintiff or for the defendant, and if fox the plaintiff in any amount they saw fit. In the circumstances of this case if there was technical error, it was not error of a prejudicial character, and the rule is that a misdirection by the trial judge will not constitute a sufficient ground for reversing a judgment unless after an examination of the whole case it shall appear that the error injuriously affected the substantial rights of the parties.

The judgment will be affirmed, with costs.


author: Caffrey, S. C. C.

text:
    CHARLES W. SMITH, PLAINTIFF, v. PHOENIX INDEMNITY COMPANY (A NEW YORK CORPORATION), DEFENDANT.
    Decided October 2, 1937.
    For the plaintiff, Charles Schmidl and James A. Major.

    For the defendant, Edwards, Smith Dawson (Raymond Dawson and Allen C. Mathias).

   Caffrey, S. C. C.

This is an action by Charles W. Smith (hereinafter referred to as plaintiff) against the Phoenix Indemnity Company (hereinafter designated as defendant), based upon chapter 153 of the laws of 1924, which provides generally for the right of action against the insurance carrier.

The primary suit (hereinafter referred to as former suit) was instituted in the Bergen County Circuit Court, and in that action Charles W. Smith and Grace Lee Smith (his wife) sued Jean Storms. The automobile of Jean Storms was insured for public liability and property damage by the present defendant company. Grace Lee Smith was a passenger in her husband’s automobile.

In the former suit the present plaintiff, Charles W. Smith, pleaded by way of count 1, an allegation with respect to the damage to his automobile and in count 2, a claim for personal injuries, medical expenses and damage to his clothing. Count 4 asks for damages for medical attention accorded to his wife, loss of consortium and damage to her clothing. Grace Lee Smith asked for damages for personal injuries. The defendant Jean Storms joined issue on these allegations. The jury rendered a verdict in favor of Charles W. Smith and Grace Lee Smith against Jean Storms in the sum of $8,000 and $12,000, respectively, and on February 15th, 1934, judgment was entered accordingly. After entry of judgment, the defendant obtained a rule to show cause with respect to both amounts and assigned the following reasons for the setting aside of the verdict:

1. The verdict rendered by the jury was excessive.

2. The verdict rendered by the jury was contrary to weight of the evidence.

3. The verdict rendered by the jury was contrary to law.

4. The verdict rendered by the jury was contrary to the charge of the court.

This rule was discharged and no appeal taken.

The same counsel now appearing in the instant case, represented the plaintiffs and defendant, respectively, in the former suit.

On the 24th day of April, 1934, there was a satisfaction of Grace Lee Smith’s judgment, in the sum of $10,000, a copy of which satisfaction reads as follows:

“To the clerk of the Bergen County Circuit Court:

Whereas, Grace Lee Smith, heretofore to wit, on the 15th day of February, 1934, obtained final judgment in the Bergen County Circuit Court against Jean Storms, for Twelve Thousand ($12,000.00) Dollars, and Seventy Two Dollars and ninety-four cents ($72.94) costs as by the record thereof may appear; and

Whereas, Grace Lee Smith has received in partial payment of said judgment the sum of Ten Thousand ($10,000.00) Dollars, and One Hundred Ninety-three ($193.00) Dollars costs and interest to April 18, 1934;

This is, therefore an acknowledgment of the receipt of said partial payment of the judgment aforesaid in the amount of Ten Thousand ($10,000.00) Dollars and One Hundred Ninety-three ($193.00) Dollars costs and interest.

The balance due on this judgment is Two Thousand ($2,000.00) Dollars, together with interest.

It is further acknowledged and understood that the acceptance of the partial payment aforesaid will in nowise affect or impair the judgment of record in favor of Charles Smith against Jean Storms, which judgment remains unsatisfied in the amount of Eight Thousand ($8,000.00) Dollars, together with interest.

1'n witness whereof, Grace Lee Smith and Charles Schmidt, attorney of record of said Grace Lee Smith, have hereunto set their hands and affixed their seals the 24th day of April, in the year one thousand nine hundred and thirty-four.

Grace Lee Smith (l. s.)

Charles Schmidt (l. s.)

Attorney of Record of Grace Lee Smith.

Signed, sealed and delivered in the presence of

Paul A. Yivers.” “State of New Jersey | County of Bergen ^

Be it remembered, that on this 24th day of April, 1934, before me, An Attorney-at-Law of New Jersey, personally appeared Grace Lee Smith, and Charles Schmidt, attorney of record of said Grace Lee Smith, who I am satisfied are the persons named in and who executed the foregoing instrument, and I having first made known to them the contents thereof, they did acknowledge that they signed, sealed and delivered the same as their voluntary act and deed, for the uses and purposes therein expressed.

Paul A. Yivers

Atty.-at-Law of N. J.

(Endorsed: Rec’d in Bergen Co.

Clerk’s Office Court Division Apr. 26, 1934 10:47 A. m.)”

Thereafter the present suit was instituted on the failure of the defendant insurance carrier to make payment of the judgment of Charles W. Smith which he obtained against Jean Storms as aforesaid. Execution on said judgment had been previously issued and returned unsatisfied.

In the case at bar the complaint against the present defendant, Phoenix Indemnity Company, pleads the former judgment and makes the insurance policy issued by the Phoenix Indemnity Company to Jean Storms a part of the complaint. The following excerpt of said policy (and the pertinent parts which the plaintiff relies on) is found in paragraph 1 of section I, which reads as follows:

“1. Bodily Injuries. To pay, within the limits specified in Statement 3, the loss from the liability imposed by law upon the Assured for damages (including consequential damages) on account of bodily injuries, including death resulting at any time therefrom, suffered or alleged to have been suffered by any person or persons as a result of such accidents.”

And in paragraphs 1 to 4 (inclusive) of section III, which reads as follows:

l. Named Assured Jean Storms

Address 815 Linden Ave., Ridgefield, New Jersey. The named Assured is An Individual The named Assured’s occupation or business is Restaurant Proprietor.

2. The Policy period shall be from October 17th, 1931, to October 17th, 1932, at twelve and one minute o’clock a. m., Standard time at the named Assured’s address as to each of said dates.

3. The Company’s liability, as respects each automobile covered hereby, shall be limited:

(a) Tinder Agreement 1, to Ten Thousand Dollars ($10,000) for all claims arising out of bodily injur- ' ies to or the death of one person front any one accident and, subject to that limit for each person, the Company’s total liability for all claims arising out of bodily injuries to or the death of more than one person from any one accident is limited to Twenty Thousand Dollars ($20,000).

(b) Tinder Agreement 2, to Eive Thousand Dollars ($5,000) as respects any one accident. Regardless of the foregoing limits the Company will pay as provided in Agreement 4.

4. The full detailed description of each automobile to be covered by this Policy, the coverage hereunder as respects Agreement 2, and the premiums for all kinds of insurance effective, are as follows:

Description of Automobile Automobile Automobile

Automobiles No. 1 No. 2 No. 3

Trade name of Automobile Buick Year and Model of Car

(Number or Letter) 1930 57 Type of Body (If truck state load capacity) Sedan

Number of Cylinders Serial Number of Automobile 2450616 •

Serial Number of Motor 2611445 List Price (Chassis and Body)

Date of original purchase & whether purchased new or second hand by named Assured.

Agreement 2 shall be effective as respects such automobile only in the event that the premium therefor is specifically entered in the proper Division provided below for such Agreement and for such automobile.

Premium Premium Premium Kinds of for Auto- for Auto- for Auto- Total Insurance bile No. 1 bile No. 2 bile No. 3 Premium

Division for Agreement 1 — Bodily

Injuries $49.68 $49.68 Division for Agreement 2 — Property damage 13.50 13.50

Total Premium $63.18”

The present case was submitted to this court (without a jury) for determination and for the purpose of a full inquiry. Counsel representing the respective parties to this present action have stipulated the use of the entire record, rules, and proceedings in the former suit of Charles W. Smith and Grace Lee Smith against Jean Storms.

The defendant in the instant case contends that because of the settlement to Grace Lee Smith in the sum of $10,000, it is relieved of its obligation with respect to both plaintiffs, because included in Charles W. Smith’s claim are consequential damages, represented by medical expenses, hospital bills, loss of consortium and other expenses arising or flowing from the injuries to Grace Lee Smith. To accept this interpretation at this time, in my judgment, would be doing violence to the express language of Paragraph 3 of Section 111, supra, of the insurance policy. Counsel has not submitted any law in justification of that contention. The ease of Sullivan v. Aetna Casualty and Surety Co., 115 N. J. L. 253, does not support the defendant’s argument.

The present issue presents difficulties well recognized by counsel, as indicated by the following colloquy:

“The court: That is what the court said when there was an attempt made to start more than one suit.

“My difficulty, as I see it — what am I supposed to do, take the record in the case and try to work out from the record these various portions, and deduct from Smith’s judgment those which are represented and should be, you say, considered as part of Mrs. Smith’s judgment, because the pain and suffering, the consortium, the medical bills and the hospital bills are incidents to her action?

“Mr. Dawson: Well, I don’t say you should do it. I doubt that you can do it. I say all those items have never been fixed in a way that you can apportion them to this policy.

“The court: Well, then-

“Mr. Major: Judge Caff rey, may I interpose at this moment and ask Mr. Dawson if his contention is that the insurance company is not liable at all, or liable only pro tanto ?

“Mr. Dawson: Well, I have always said, and I said to Mr. Schmidt right away, that here was a situation where he must be entitled to something, and I thought we might sit down and work it out in some way. I think that there are some items that are covered by this policy, for instance, his personal injury, certainly.

“The court: You say I could not take the record, which is probably true. Then how would we go about ascertaining the precise amount that Mr. Smith would be entitled to ?

“Mr. Dawson: I do not see how you can do it.

“The court: And suppose that we went to a jury trial on that, would not we encounter this difficulty, taking the steps chronologically in a suit such as this against the insurance policy, under the statute? We would have a new party, would we not, because the insurance company, while liable under the statute, is only liable in the event of insolvency on the part of the--

“Mr. Dawson: The assured.

“The court: -of the assured. If we went to trial we would be suing an insurance company, and we would take testimony with respect to the injury sustained by Smith, would we not?

“How, the difficulty, as I see it, with respect to that, is this: What jurisdiction in law, either by the act of negligence or the construction of the policy — what right would I. have to do that, even with a jury trial ?

“Mr. Dawson: Well, I don’t think you could, or would have a right to do it.

“The court: Then what solution would you offer for me to arrive at it, assuming you were putting it to me to decide without a jury, on the record?

“Mr. Dawson: Well, judge, honestly, you are putting it to me — it embarrasses me to answer. But I try to be fair in these things, and I have thought all the time, and Mr. Mathias and I have talked it over, that there ought to be something done some way about this thing, and I thought that probably it could be worked out some way. I don’t know. Mr. Schmidt has said, ‘I want my eight,’ and I say, There is no way under Heaven how you can get your eight/ and I say that now, there is no way.

“The court: He has his eight, so far as the record is concerned.

“Mr. Dawson: He has got it, but he has not got the money.”

In the former suit (by Charles W. Smith and Grace Lee Smith against Jean Storms) the jury rendered a general verdict in favor of each of the plaintiffs, as hereinbefore indicated. My understanding of the rule is that if there is evidence to support a general verdict, it will not be disturbed, even if there was included in the general verdict some elements of damage which could have been excluded upon proper objection. There was no defect, imperfection, or omission in this complaint, either in form or substance which could have been objected to upon demurrer and following an old principle of pleading, any other defect or omission is cured by the verdict. 1 Saunders 228 (noie 1). Counsel for the present defendant could (at the trial of Charles W. Smith and Grace Lee Smith against Jean Storms) have specifically submitted requests to the court for the consideration of the jury, so that verdicts on the distinct counts set forth in the complaint would have been rendered. This was not done by counsel. This would have given us specifically — in dollars and cents — the elements of damage that the jury considered as proved.

I can see no lawful method -which will permit me to dissect the verdict, much less disregard the judgment of Charles W. Smith in its entirety.

At the time of the trial, of Charles W. Smith and Grace Lee Smith, the insurance carrier, from an examination of the complaint, could have readily seen the demands of the present plaintiff as set forth in this complaint. The present defendant under the terms of its policy had entire control over the defense in the former suit (of Charles W. Smith and Grace Lee Smith against Jean Storms) and was put under a duty to make inquiry which would lead to the knowledge of the requisite facts. Nothing was done to limit the plaintiff or to restrict the proof concerning his claim for damage. The defendant, by its said conduct, cannot now complain of this and under the circumstances the same constitutes a waiver and operates as an estoppel. Cook v. Preferred Accident Insurance Co., 114 N. J. L. 141; 176 Atl. Rep. 178 (cited with approval in O’Dowd v. United States Fidelity and Guaranty Co., 117 N. J. L. 444; 189 Atl. Rep. 97). These cases are not directly in point, but by analogy the principle set forth would apply. See, also, 81 A. L. R. (at pp. 1324 et seq.).

Judgment will be entered in favor of the plaintiff, Charles W. Smith, and against the defendant, Phoenix Indemnity Company, in the sum of $8,000 with interest from February 15th, 1934, and costs.

Postea in accordance with this determination may be submitted to the court.


author: Pebskie, J.

text:
    HERMAN COHEN, PROSECUTOR, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HAMILTON, RESPONDENT.
    Argued May 5, 1937
    Decided July 26, 1937.
    Before Justices Bodine, Heheb and Pebskie.
    For the prosecutor, Frank I. Casey.

    For the respondent, Raymond J. Stewart, Jr. (Richard J. Hughes, of counsel).
   The opinion of the court was delivered by

Pebskie, J.

Did the removal of prosecutor trench upon chapter 226, Pamph. L. 1927, which relates to tenure of police officers under township government? The pertinent provisions of the act of 1927, supra, provide that “the officers and men employed in the police departments of such townships shall hold their respective offices and places * * * during good behavior and shall not be removed * * * for political reasons, or on any ground except incapacity or disobedience, after hearing, upon written charges and a fair and impartial hearing upon such charges * *

Prosecutor, a duly licensed physician of this state was, on June 16th, 1931, regularly appointed to the then existent position of police surgeon of the police department of the township of Hamilton at the yearly salary of $1,000. His position is not a sinecure. Cf. Paddock v. Hudson Tax Board, 82 N. J. L. 360; 83 Atl. Rep. 185. His duties, inter alia, consisted of “checking on officers when they went on duty, checking on them to see whether they were fit to go on duty, the examination of rape eases, the examination of drunken drivers * * * to go out on drowning cases when called * * * and giving medical treatment to the prisoners.” Concededly prosecutor is entitled to the protection afforded by the act of 1927, supra, and could not, therefore, be removed from his position except for the reasons and in the manner therein prescribed, and except upon the further reason that his position was abolished in good faith in the interests of economy. Cf. Reck v. Board of Commissioners, North Bergen, 110 N. J. L. 173; 164 Atl. Rep. 468. Prosecutor performed his varied duties efficiently, without complaint from the day of his appointment until April 7th, 1936, when respondent passed an ordinance purporting to abolish permanently his position of police surgeon, for the stated purpose of economizing on salaries in the police department, and transferring the duties of his office to the office of the township physician, and terminating prosecutor’s services. No charges were preferred against him nor was he given a hearing. He made application for a writ of certiorari to review the legality of the ordinance which carried with it his dismissal. The writ was allowed. 15 N. J. Mis. R. 74; 188 Atl. Rep. 689. The cause is now before us upon the merits.

Por the prosecutor it is contended that respondent did not abolish his position, that the passage of the ordinance and the termination of his services were inspired, motivated and effected not in good faith in the interests of economy but in bad faith, solely for political reasons contrary to the act of 1927, supra.

Por respondent it is contended not that prosecutor’s position was abolished because it was useless (Cf. Hunziker v. Kent, 111 N. J. L. 565 ; 168 Atl. Rep. 825; Santucci v. Paterson, 113 N. J. L. 192; 173 Atl. Rep. 611), but rather because of the existence of a financial emergency necessitating strict economy, and that it acted in good faith. That contention is made to rest, in substance, upon the claims that tax collections were only about fifty-nine per cent.; that demands for relief upon it had greatly increased; that it was confronted with an unexpected demand of $6,400 by the state highway department after the passage of the budget for 1936, in payment of its share for the acquisition of certain rights of way; that it was obliged to make automatic wage scale increases to members of the police department. It requires no extended discussion, under such circumstances, to justify the wisdom and need for economy in the administration of respondent’s governmental affairs. Even if it be conceded that a municipality has the right, irrespective of motive, to abolish a useless office, to merge departments, to require officers and employes to perform duties in two or more departments providing that the work so required be similar in character, and providing further that the municipality acts in good faith and in the interests of economy, or for the betterment of the public service, the question still requiring decision is whether the prosecutor carried the necessary burden of proving bad faith. We think he did.

Let us recur to the record. What does it disclose? We find that as a result of the election in 1935 the complexion of the political majority of the personnel of the township committee changed; that they were of different political allegiance from that of prosecutor; that immediately following their election they boldly but frankly admit that they determined to replace prosecutor with one Dr. Corrigan, because he was a member of their own political party, and the prosecutor was not; that with but very few exceptions, irrespective of their stated reason of an emergency calling for economy, they distributed the patronage on the old time political theory that “to the victors belong the spoils.” Respondent was advised by the township counsel that prosecutor could not be so replaced. But neither prosecutor’s tenure nor their counsel’s advice as to the law was permitted to thwart them in their set objective. Thus the challenged ordinance was conceived, enacted and prosecutor was dismissed.

Let it be observed that prosecutor and his counsel appeared at a meeting of the township committee when the final passage of the ordinance was considered. For prosecutor an offer was made, notwithstanding respondent’s denial thereof, that he would carry on his duties, in the true spirit of economy, for the same pay that respondent was going to pay his successor for the performance of his duties. The offer was not accepted. The term of the then township physician expired on January 1st, 1937. The performance of prosecutor’s duties was apparently considered as necessary for his duties were transferred to the township physician, who, in addition to the duties of his office, performed the duties of police surgeon at the additional salary of $40 a month. At the expiration of the term of the then township physician, Dr. Corrigan, who was originally slated for prosecutor’s position, was appointed the new township physician. How does respondent’s claim of an emergency, and resultant necessary economy effected by the removal of prosecutor, find support in the proofs?

Despondent, contrary to the action of its predecessors in office for several years past, partially restored pay cuts to officers in order to carry out their political promises made. As observed in the per curiam on the allowance of the writ, it suddenly filled positions in the police department “which had been dormant for years.” notwithstanding its claim of economy, the costs for the administration of the police department for the year of 1936 was $2,000 more than it was for the year 1935. Despondent’s cry of economy is specious. And its letter to prosecutor — a licensed physician and surgeon — stating “* * * Because of your splendid record of service to the police department * * * if you would consider becoming * * * a patrolman * * * you should be given a great deal of consideration” (mark: not the job), has both the earmarks of insolence and bad faith. It is well characterized as indicative of a purpose to add insult to injury.

Political reasons, prohibited under the act, and not reasons of economy, or reasons which had for their purpose the betterment of the public service, were the real reasons for the enactment of the ordinance and the dismissal of the prosecutor. We are entirely satisfied that prosecutor has fully established a clear showing of bad faith on the part of respondent. Blair v. Brady, 11 N. J. Mis. R. 854; 168 Atl. Rep. 769; Ziegler v. Hachensack, 113 N. J. L. 215, 219; 174 Atl. Rep. 199; affirmed, 114 N. J. L. 186; 176 Atl. Rep. 324; Linden v. Board of Chosen Freeholders, Sussex (No. 227, May term, 1937, Supreme Court).

The challenged ordinance and the dismissal of prosecutor is set aside, with costs.


text:
    George Poeter, petitioner, v. Anna Poeter, defendant.
    [Decided October 11th, 1937.]

      Messrs, Eisenstein & Eisenstein, for the petitioner.

      Mr. Abe D. Levenson (Levenson, Comen & Levenson), for the defendant.
   Van Winkle, A. M.

I am asked to advise an order annulling past-due alimony, and past-due maintenance for a child of the parties, both provided in an order duly made, pending this suit for divorce, under section 25 of our Divorce act, on the ground that the husband cannot pay these past-due sums. The application conies really in answer to a motion to have the husband adjudged to be in contempt for failure to comply with the order.

I must deny the application.

The jurisdiction of the court of chancery in matters of alimony in divorce suits is purely statutory. Alimony may he awarded pending a suit for divorce or nullity of marriage, or after a decree of divorce, under section 25 of the Divorce act of 1907 (Comp. Stat., p. 2021) which section I quote in full that I may the more clearly show the reasons for my decision:

“Pending- a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the court of chancery to make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just, and to require reasonable security for the due observance of such orders, and upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with the order, to award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and to appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said orders by such other lawful ways and means as is usual, and according- to the course and practice of the court of chancery; orders so made may be revised and altered by the court from time to time as circumstances may require.”

This section was left unchanged through all the years until 1933, when it was amended, but only to provide with respect to the remarriage of a wife subsequently to a decree. P. L. 1933 p. 296; N. J. Stat. Annual 1988 p. 124 § 62-26.

Our Divorce act of 1907 is “the Uniform Divorce act.” See Thompson v. Thompson, 89 N. J. Eq. 70 (at p. 74); 103 Atl Rep. 856. Unfortunately, this Uniform act has been adopted in only a few states, for it was drafted as the fruit of tentative drafts and many conferences, and it represents the experience and judgment of a select body of lawyers chosen from every part of the country. Dean Pound wrote an article in 1908 {21 Harvard, Law Review 406) in which he asked this rhetorical question, “are any judicial decisions more deliberately worked out or more carefully adjusted to the circumstances to which .they are to be applied than the draft acts proposed by the conference of commissioners on uniform state laws, or the national congress on divorce legislation?”

One who is familiar with the subject of alimony sees that section 25 of our Divorce act itself reveals that it was drafted by lawyers who knew that a proceeding for alimony in a divorce suit is not an essential part of the cause of action for divorce; that such a proceeding is “collateral” to the issue of divorce {2 Bishop {6th ed.) 487) ; that an alimony proceeding is merely “an appendage” of the action for divorce {Ibid. 351); that, as decided in the famous case of Forest v. Forest, 20 N. Y. 501, “alimony is a mere incident of the judgment of divorce;” that proceedings for divorce and for alimony are distinct, although they may be proceeding coincidentally. (Sutphen v. Sutphen, 103 N. J. Eq. 203; 142 Atl. Rep. 817; Noel v. Noel, 15 N. J. Mis. R. 576; 193 Atl. Rep. 558); that a proceeding for alimony is a proceeding for a judgment, which is a judgment separate from the judgment of divorce; that the proceeding for alimony has nothing to do with the final judgment in the action for divorce; and that an order for alimony made pending suit for divorce has no relation to the subsequent decision of, or decree on, the issue- of divorce, except that payments provided to be made by an order for alimony made pending suit terminate when the final decree of divorce is entered.

The words of section 25 plainly tell us that any order touching the alimony of a wife, and also any order touching the maintenance of a child, where there is pending a suit for divorce, may be enforced not only by sequestration, but also “by such other lawful ways and means as is usual and according to the course and practice of the court of chancery;” and this includes enforcement by execution, because section 44 of the Chancery act (Comp. Stat. p. 1/25) provides as follows;

“The decree of the court of chancery shall, from the time of its being signed, have the force, operation and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment; and all decrees and orders of the court of chancery, whereby any sum of money shall be ordered to be paid by one person to another, shall have the force, operation and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment, and the chancellor may order such executions thereon as in other cases.”

The chancellor made it clear in White v. While, 94 N. J. Eq. 278; 120 Atl. Rep. 419, that the supplement to “An act respecting any execution,” enacted in 1916 (P. L. 1016 ch. 113 p. 21/2; Cum. Supp. Comp. Stat. 1911-1921/ p. 1207 § 71-9 l) which provides for an installment execution, applies to orders of the court of chancery whereby any sum of money shall be ordered to be paid by one person to another, as well as to decrees in chancery. The chancellor stressed this, and emphasized his meaning by the use of italics. Iiis decision is an interpretation of section 44= of the Chancery act, as well as of the 1916 supplement to the Execution act just referred to.

I, myself, have never doubted that there was a vested right in sums past due under an order for alimony or an order for the maintenance of a child, which order happened to be included in a decree of divorce, or which was made after a decree of divorce, in time; nor have I had any doubt that a subsequent order of modification cannot operate retroactively to disturb such vested right. Any doubts that may have been held are now removed by ■the decision in Hatch v. Hatch, 15 N. J. Mis. R. 461; 192 Atl. Rep. 241, > where Advisoiy Master Herr declared that on a consideration of the court’s power to modify orders for alimony made in divorce suits, “the answer must be found in section 25 of the Divorce act, and the construction to be given to that section.” And I note in this decision by Advisory Master Herr that the vested character of accrued “permanent” alimony, that is, alimony provided after a decree of divorce has been recognized by Advisory Master Child in an unreported decision (Spahn v. Spahn — Docket 56-57), by Advisory Master Campbell in Williams v. Williams, 12 N. J. Mis. R. 641, 644; 174 Atl. Rep. 423, and by Advisory Master Grosman in Flavell v. Flavell, 15 N. J. Mis. R. 167, 176; 189 Atl. Rep. 639. It should be said here that Wilson v. Wilson, 14 N. J. Mis. R. 33; 181 Atl. Rep. 257, was a maintenance suit brought under section 26 of our Divorce act, and that what Advisory Master Herr said in deciding that case concerning the inherent power of this court is not pertinent in the consideration of the order I am dealing with, which order was made under section 25 of our Divorce act. The court has no inherent jurisdiction to grant alimonj in a divorce suit. Wigdor v. Wigdor, 14 N. J. Mis. R. 880; 188 Atl. Rep. 235.

Virtually all that I have to say applies with equal force to an order for the maintenance of a child pending a divorce suit, as well as to an order for alimony provided for a wife pending a divorce suit, and the conclusion is the same, although I may not again herein specifically refer to an order for the maintenance of a child, with the purpose of not unduly extending these conclusions.

A proceeding for alimony pending a suit for divorce, while based upon the pendency of the action for divorce, is independent of the cau§e of action for divorce. The proceeding is initiated by a petition which raises an issue separate from and independent of the issue of divorce, and this issue is decided on proof special to this issue. As Vice-Chancellor Backes pointed out in Swallow v. Swallow, 84 N. J. Eq. 109 (at p. 111) ; 92 Atl. Rep. 872, the petitioner usually alleges that she is destitute of the means of supporting herself pending the suit, and she prays that the husband be required to pay her a proper allowance for her support and maintenance "until the termination of this suit.” The application may be heard orally or by affidavits. The issue is a narrow one; and usually it may properly be decided on affidavits, where affidavits are submitted and no request is made for an oral hearing. See' Sulphen v. Sulphen, supra; Cropsey v. Cropsey, 104 N. J. Eq. 187; 144 Atl. Rep. 621. The application is not for any relief in connection with the final judgment in the action for divorce. The application does not need, and it cannot get, any support from, nor can it give any support to, the decree of divorce, on the cause of action for divorce, in any interlocutory way.

The court manifests its adjudication of the separate issue by an order which is positive, and not at all provisional, which directs the unconditional payment of money, usually by the husband to the wife, and she may be either the defendant or the petitioner. This order to pay is a judgment which may be enforced by execution. This order is in no way preliminary to, or a step towards, a decree of divorce, and it settles nothing whatever respecting the cause of action for divorce. Indeed, the issue of alimony raised by the petition may be, and often is, decided against the party to the suit in whose favor a decree for divorce afterwards is made. The order may be executed, even if there is no decree in the action for divorce; or it may be executed after the final decree in the action for divorce is entered, or even if the action for divorce is dismissed, or the wife in whose favor the order was made be adjudged guilty in the divorce suit. See Swallow v. Swallow, supra.

Vice-Chancellor Buchanan saw all this clearly when he was deciding Suiphen v. Suiphen, supra, but he expressed himself only to the extent appropriate to a consideration of the facts of the case before him, when he said: “The wife is not necessarily entitled to alimony merely because of bringing the suit or because of obtaining a decree of divorce. Whether or not a wife, even if successful in obtaining a decree of divorce, is entitled to decree for permanent alimony, and if so, for what amount, is an issue separate and distinct from the issue as to the divorce, and involving for its determination matters of evidence different from, or at least additional to, the evidence required for the determination of the divorce issue * * *. All that has been said as to the right or claim to permanent alimony applies equally to the right or claim to temporary alimony” * * *.

To begin with, a husband owes his wife a duty of support. If there is a divorce suit pending, brought by either against the other, the wife comes into court with an application to enforce this existing duty pending the suit. Unless there be exceptional circumstances, the court orders the husband to pay to the wife a specified amount of money, usually an amount to be paid weekly. This specified weekly sum vests weekly. If it did not the court’s order would not only be an empty performance, but there would be a failure, an extinguishment, of the duty of support, and a sanctioning of such failure or extinguishment by the court. The court cannot take away the performance of this existing and continuing duty, which by its order it has found to exist, and the amount of which it has fixed, until it further finds that the duty does not exist. The performance of the duty may be afterwards fixed by the court at a different amount. The termination of the duty, or the amount to be paid in performance of the duty, may be evidenced by the further order of the court. The order of the court to pay is an adjudication by the court translating the duty into a specified command by the court. At the first or at the end of each week, as tile case may be, there arises an obligation on the part of the husband to pay the specified weekly amount. On the first or at the end of each week, as the case may be, the husband owes the weekly amount specified as a performance of the duty of support which had existed, but which had, before the order was made, not been fixed at any specific sum.

An order for alimony made pending a suit for divorce and an order made after a decree of divorce are not legally distinguishable in any way. As to both, the jurisdiction of the court comes alone from section 25 of our Divorce act; they have the same nature and purpose, that is to say, the support of the wife under the husband’s continuing duty of support; and the orders may be enforced in the same way, that is, by executions. The court’s continuous power to modify both is the same. A decree of divorce in the suit for divorce does not raise any difference. All that the decree of divorce does is to terminate the payments, so that no payments become due after the entry of the decree.

An order for alimony made after a decree does not necessarily belong in the decree, for it is no part of the decree on the cause of action for divorce. A provision for alimony is often placed in the divorce decree nisi, for convenience, so to speak, but the order is still only “an order touching the alimony of the wife.” The placing of this order in the decree of divorce does not make the decree of divorce a decree for alimony. Sometimes a decree of divorce is silent as to alimony, and an order for alimony is actually made after the decree, that is, after, in time, by a separate paper which evidences itself outside of the decree of divorce, and which has no relation to the decree of divorce, except only that it is made after the decree of divorce, in accordance with section 25 of our Divorce act.

All orders for alimony, whether made pending the suit for divorce or after the decree of divorce — and they can be made at no other times — are based on the same concept, that is to say, the enforcement of the continuing duty of the husband to support his wife, of which duty he is not permitted to absolve ■ himself by his own conduct, although that conduct results in a dissolution of the marriage.

An order for alimony made pending a suit for divorce, and also an order made after a decree of divorce, both run until the further order of the court, whether they be so expressed or not. An order for alimony made pending a suit is terminated on the entry of the divorce decree nisi, if an order for alimony is included therein, or, if an order for alimony is not so included, and no order for alimony is made after the divorce decree nisi is made, the order for alimony made pending suit terminates on the entry of the final decree, that is to say, on the termination of the suit; but its “vitality,” to use the well chosen and self-explanatory word used by Vice-Chancellor Backes in Swallow v. Swallow, supra, for the enforcement of sums past due, survives the decree, for such sums are vested.

Section 25 of our Divorce act does not provide for a “decree” for alimony. We see that alimony, provided pending a suit for divorce, or after a decree of divorce, are alike provided by an “order.” I say this, because often we hear an order which has been made after a decree of divorce, which happens to be included in a decree of divorce, spoken of as a “permanent” order, or as a “decree” for alimony, and the alimony provided by such an order as “permanent” alimony. We should notice that these words are used only for easy or short reference, and to save the use of more words. The us.e of the words “decree” and “permanent,” as applied to an order for alimony made after a decree of divorce, have suggested the notion that such an order has more potency, that it is something of a higher degree, than an order for alimony made pending a suit for divorce. This notion includes the assumption, which is clearly fallacious, that an order for alimony made pending a suit for divorce is only an “interlocutory” order. Really, the only “permanent” thing about it all is the court’s continuous power to modify any order for alimony, no matter when made, as to the future.

Aii order for alimony made pending a suit for divorce is not an interlocutory order which falls with a decree on the cause of action for divorce. An interlocutory order, generally speaking, is not appealable by or through itself, and sometimes it is not reviewable through the decree in the suit in which it was made when such decree is appealed. But in New Jersey, an order for alimony made pending a suit for divorce is appealable, and it may be enforced as a final order by an execution. Section 44 of the Chancery act gives such an order itself “the force, operation and effect of a judgment at law.” An interlocutory order is one which is designed “to prepare the case for final decree;” or, expressed differently, it is “an order made before final decree, and for the purpose of ascertaining matter of law or fact preparatory to final decree.” Manifestly, an order for alimony made under section 25 pending a suit for divorce may not be so classified. An order for alimony made pending a suit for divorce comes, in time, before a decree of divorce, but, surely, this is not sufficient reason for naming such an order “interlocutory,” in a legal sense.

The decisions in the states — and I think these states are in the minority — which hold that sums past due under an order for alimony made pendente lite are not vested, proceed either on an interpretation of statutes to that effect, or on an argument based on the erroneous premise that such an order is merely “interlocutory.” But I have not seen any case in any state so holding, nor would I expect to find one, where an execution may be issued on the order.

The “propriety” or the “finality” of a decree of divorce is not called in question by an application for modification of the order for payment of alimony which happens to be contained in the decree. The decree itself, as a decree on the cause of: action for divorce, remains undisturbed, both as to propriety and finality, after a modification of: such order for alimony.

Several times I have had New York decisions on alimony shortly cited to me by counsel on motion days, without any accompanying reference to the New York statutes under which the decisions were made. In New York, alimony provided after a decree of divorce may be docketed as a judgment. Paragraph 504, New York Civil Practice act. Alimony provided pending a suit for divorce is provided for in paragraphs of the New York Civil Practice act, other than the paragraphs relating to alimony provided after a decree of divorce (paragraphs 1169, 1171, 1171a, 1172), and these paragraphs specify that contempt and sequestration are the remedies for the enforcement of alimony provided pending a suit for divorce. The New York courts have construed these paragraphs as not authorizing the issuance of an execution; and so they have held, in substance, that alimony past due under an order pendente lite is not vested; they have held that they should not, by implication, read the right to issue executions into the paragraphs providing for alimony pendente lile. But as to this, in what I think is the most recent appellate division case on the subject (Doncourt v. Doncourt, 281 N. Y. Supp. 535; App. Div., June 20th, 1935), a judge dissented, evidently thinking that an execution might be issued.

A consideration of New York decisions cannot help us in the interpretation of section 25 of our own Divorce act; and I cannot help saying that the earlier New York decisions on the subject of alimony pendente lite are unsatisfactory. There have been dissenting opinions, and opinions that the judges themselves have said could- not be reconciled. One appellate division judge declared that he did not “willingly” follow a preceding decision, because it was a wrong decision. The early New York case that perhaps stands out most, so far as citing in other jurisdictions is concerned, is Shepard v. Shepard, 99 App. Div. 309, where the precise question under discussion here was flatly before the court, and it was held, by a unanimous court, that alimony due under a New York order for alimony pendente lite is a fixed sum due and payable, and that a termination of the action does not.discharge the payment of past-due alimony. However, neither the early nor the later New York decisions on the subject of alimony should be shortly cited in New Jersey, when we are considering the subject of alimony .under section 25 of our Divorce act.

The statute oi Khode Island relating to alimony pendente lite is similar to the provisions oi section 25 oi our Divorce act and section 44 oi our Chancery act, but it contains a provision, not only that the court “may make all necessary orders and decrees concerning the same, and may at any time alter or amend” the order, but that it may “annul the order for sufficient cause.” (Italics mine.) Tet the Ehode Island courts have decided that an allowance for alimony awarded pendente lite in a divorce suit is not to be altered by the court unless the former order of allowance should be vacated for fraud, or some other reason which would warrant the annulling of a judgment; and that there may be no retroactive order annulling past-due alimony. See Harvey v. Harvey, 45 R. I. 383; Rose v. Rose, 49 R. I. 64.

An order for alimony pendente lite was involved in Levine v. Levine (Ore.), 181 Pac. Rep. 609, where it was held that the order was a final judgment. One phase of the notorious and thoroughly-contested Sharon litigation is reported in Sharon v. Sharon, 7 Pac. Rep. 456; 67 Cal. 185, where wo find the court holding that an order for the payment of alimony and counsel fee was in the nature of a final judgment, “It possesses all the essential elements of a final judgment. Nothing remains to be done except to enforce it. Although the pendency of the action for divorce constituted the basis for the order, it was no part of the relief demanded by the plaintiff. She might at any time during the pendency of the action have applied to the court for such an order, and if granted it would not be affected by subsequent proceedings in the action. Its validity would not depend in any way on the results of the action. If the court had afterwards found that the marriage relation never existed between the parties that would not have affected the order for the payment of temporary alimony. It was to all intents and purposes a final judgment entered in the action quite as much as the decree of divorce in the case.”

An order for alimony pendente lite was involved in Daniels v. Daniels, 10 Pac. Rep. 657, where the court held that a judgment that is conclusive of any question in the case is final as to that question, and the order for alimony pendente lile was held to be to all legal intents and purposes a final judgment. “The order to pay was a positive one. * * * it has the effect of an unsatisfied judgment. * * * It is not vitally important in such a situation as that here presented what terms are used to describe the court’s decision upon an application for temporary alimony, whether it is called an order or a judgment, interlocutory, or final. In the present instance the language employed showed the essential character intended. * * * The obligation thus created had the effect of a judgment. The litigation having ended without its being set aside, it retained its vitality. Its force was not impaired merely because the debtor had ignored it and execution had not been issued.” See Paul v. Paul, 121 Kan. 88; Hobbs v. Hobbs, 82 Col. 190; 210 Pac. Rep. 398; Blackburn v. Blackburn, 198 Ky. 12; 247 S. W. Rep. 1111; Robbins v. Mulcrey, County Clerk (Cal.), 281 Pac. Rep. 668; Ex parte Robbins (Cal.), 212 Cal. 534; 299 Pac. Rep. 51; Biltmore v. Superior Court (Cal.), 281 Pac. Rep. 710; Raines v. Raines (Ga.), 76 S. E. Rep. 51; Gorham v. Gorham (Ga.), 94 S. E. Rep. 555; Caldwell v. Caldwell (N. C.), 189 N. C.; 128 S. E. Rep. 329; Barney v. Barney (Iowa), 14 Iowa 189. These cases are authorities in the respective states of their decision for the proposition that an order for alimony pendente lite in an action for divorce is final, and so gives vested rights; but, of course, the decisions are to be considered in connection with the statutes of the respective states.

One of these other-state decisions, cited in the preceding paragraph hereof, holds that where the court directs the payment of sums of money, pendente lite, as a performance of the duty of the husband to support the wife, the duty is owed not only to the wife, but also to the public. The opinion does not explain this statement in anjway, but I should say that, apparently, the court had in mind the “triangular” characteristics of a divorce suit, and that the court was making an application of these characteristics to the effects of an order for alimony; that it considered that the interest of the public was in the ease to the extent that if the sums provided to be paid to the wife were not vested the wife might become a public charge — and so the public was interested. In another case not cited in these conclusions, the court remarked that wives and storekeepers supplying food and clothing to a wife counted, and had a right to count, on the sums provided to be paid by the husband in an order for alimony pendente lite as being vested. The other cited cases hold, generally speaking as to all, that an application for alimony pending suit is a proceeding for a judgment separate from, and independent of, the judgment of divorce, although it is not made in a separate suit; that it is not affected by the judgment of divorce, except only that the judgment of divorce fixes the date on and after which no further payments under the order need to he made, and that the judgment of divorce or a dismissal of the divorce action does not affect the liability to pay the amounts then due.