GREEN, V. C.

Action by Thomas Main against Sarah Ann Main for divorce on the ground of adultery. A decree for plaintiff was entered on report of a special master, which decree was afterwards opened, and defendant permitted to answer. On August 16, 1892, there was a decree for defendant. 24 Atl. Rep. 1024. Plaintiff moves for leave to open the case and produce additional testimony Motion denied. Defendant moves for alimony pendente lite and counsel fee. Motion granted.

R. P. Wortendyke, for petitioner.

Carroll C. Robbins, for defendant.

GREEN, V. C. This case was tried before me, and submitted, in April last. Subsequently the counsel for the petitioner, Thomas Main, several times suggested that he wished to make application for leave to produce additional testimony, and, desiring to afford every facility to counsel, I postponed filing my opinion from time to time, until I sent word to him that, unless he made his motion by the 16th of August, I could not wait longer for his convenience. Not hearing from him at that time, I, that evening, tiled my opinion, advising a decree in favor of the defendant, on the ground that the petitioner had failed to establish his charge against his wife. 24 Atl. Rep. 1024. Counsel for the defendant stated, on the hearing of this motion, that no decree had been entered, because he desired to make a motion for alimony pendeute lite and counsel fee. The case then stands in this condition: Proofs have been taken before a vice chancellor in open court. The case has been duly considered, and his opinion rendered, and the motion is then made on behalf of the losing party to open the case for further hearing. This is, of course, contrary to the general practice of the court. As shown by Chancellor Runyon in the case of Mulock v. Mulock, 28 N. J. Eq. 15, the general rule was not to permit the introduction or new evidence after publication, but he suggests that the grounds upon which the rule was founded have been shaken, if not entirely removed, by the change in the practice which has obtained with reference to the trial of causes in this court before a vice chancellor. In that case the application was made after the evidence was closed, but before the argument of the cause had taken place, and the chancellor opened the testimony for the further proof. In this case the testimony has been taken, the argument had, and decision rendered. In Warner v. Warner, 31 N. J. Eq. 549, on petition filed after a decision of the case, Vice Chancellor Van Fleet (page 551) says: "In determining whether the proofs should be opened, in a case tried before the vice chancellor, by the oral examination of witnesses, this court is governed by the same rules that the law courts apply to applications for new trials. This court will open the proofs before argument, upon the discovery of new and material evidence, provided it is shown that the applicant could not have discovered the new matter, by the exercise of reasonable diligence, before the proofs were closed." In McDowell v. Perrine, 36 N. J. Eq. 632, it was held in the court of appeals that a rehearing will not be granted if the evidence to be offered is merely cumulative. There is more reason for such refusal where the party has been warned, and has, without excuse, failed to produce his evidence.

The affidavits presented upon this motion indicate that the evidence which the petitioner seeks now to introduce is for the purpose of showing that John W, Locke, who was the party incriminated in the original charge, had been seen on several occasions with Rillings, the detective, and with Norris, the principal witness for the petitioner; and that he had subscribed a certain statement in which he made admissions contrary to the evidence which he gave upon the trial; and also to show that Norris was really at the ho use of Mrs. Main in 1885. Locke, on the trial of the case before me, denied acquaintance with these parties, Rillings and Norris, or that he had made certain statements which were contradictory of his sworn testimony;and several of the defendant's witnesses swore that the witness Norris had not been a resident of the defendant's house at the time he claimed to have lived there. It is to contradict these points that the effort is now made to introduce new evidence. Is there either surprise or diligence shown? The defendant resides in Denver, Colo. An order of publication was taken, but no answer was filed by her, and the case was referred to a master to take proofs. On the trial of the case ex parte before the master, the detective, Rillings, and a witness who called himself George Norris, were sworn as witnesses for the petitioner. It was Norris' testimony that he had, at a very late hour on a_ certain night, discovered John W. Locke, under very suspicious circumstances, in the house of Mrs. Main, where he, Norris, claimed to have been boarding, that furnished the ground for the report of the master for a divorce, and for its confirmation. A decree for divorce was duly entered, a copy of which was forwarded to Mrs. Main at her residence in Denver. She received this copy of the decree, which she afterwards testified was the first intimation she had of the institution or pendency of the suit. Through her counsel she immediately made application on this ground to open the decree, and to be let in to defend. Such order was made by the chancellor, and the case, being referred to me, was heard on proofs taken in open court, as before stated. On the application to open the decree, an affidavit of the defendant was presented to the chancellor, in which it was stated, among other things, as follows: "And this deponent further says that she has read a copy of the testimony taken in the above cause before J. Garrick, Esq., one of the masters of the said court of chancery, and that the statement of George Norris, or Morris, that he had a room at deponent's house at Nyack for two weeks in July, 1886, is false, unless he gave an assumed name, and that no person giving that as his name ever had a room at her house at Nyack, aforesaid." The affidavit of her niece, Clarissa Dale, who resided with her aunt at Nyack, was also presented, in which she, among other things, says: "And this deponent further says that she has read a copy of the testimony taken in the above-stated cause, and that no person by the name of George Norris, or Morris, or Charles F. Rillings, ever boarded or had a room at the house of said Sarah Ann Main at Nyack in the years 1885 or 1886, or at any time after her marriage, unless they were at that time using assumed names." There was also presented at the same time an affidavit of John W. Locke, in which he says, among other things: "And this deponent further says that he never had any knowledge whatever that the said suit was pending, or that a divorce had been entered therein, until he was informed by one Garrett Z. Schneider, on the 5th day of October, 1891; and this deponent further says that he never confessed to said Charles F. Rillings. or stated to him or any one else, that he, this deponent, had had illicit inter course with the said Sarah Ann Main; and this deponent further says that he never stated to the said Rillings, or to any one else, that said George Norris knew anything of said defendant's guilt, or of any suspicious circumstances tending to prove it; and this deponent further says that he is willing to go to the state of New Jersey at any time, before the court of chancery, to give testimony in said cause, without process of any kind for that purpose." The cause was set down for hearing before me for the 23d of March, 1892, and at that time John W. Locke was present in court, as were the counsel for Mr. Main, and I think Mr. Main himself. Locke was also present on the 1st of April, to which the case was adjourned; the adjournment being granted to the petitioner for the purpose of enabling him to prepare for the trial. These facts appear substantially by the affidavit of the counsel for the defendant which was presented upon this motion, or occurred in open court.

From this statement it will be apparent that the petitioner was duly warned by the affidavits presented by the defendant in November, 1891, that in her defense to the charge made against her she would diretly attack the statements which had been made by Rillings and by Norris. This was five months before the case actually came to trial. The presence of defendant, of Clarissa Dale, and of Locke in the court room March 23, 1892, was notice to petitioner to meet the allegations of the affidavits on which the decree had been opened. There is no proof to show that the petitioner might not have furnished himself with the evidence to corroborate these two witnesses, on whose testimony his whole case depended, which he now seeks to introduce, or that he exercised due diligence to procure, and present this testimony to support witnesses whose statements he had notice would be attacked. But the evidence that is sought to be given does not even rise to the dignity of cumulative evidence; it would not be testimony tending to establish the alleged facts sworn to by Norris or by Rillings. Its only probative force would be to corroborate them in their statement with reference to their whereabouts, and to Locke's acquaintance with them Doth. This defendant lives in Denver, Colo. To reopen this case entails upon her the expense and annoyance of again defending the suit, as well as leaving her character open to the imputation which has been made by the charges of the petitioner. Neither the practice of the court nor justice requires that she should be subjected to this additional hardship. But, the petitioner not having shown due diligence or surprise, in a legal sense, which would justify the court in granting his petition, even if the testimony was of a character which, under the rules, would entitle it to consideration, I advise that the motion be denied, with costs.

Defendant's counsel moved for an additional counsel fee, and for an allowance, by way of alimony pendente lite, for Mrs. Main's expenses in coming from Denver, Colo., with Clarissa Dale, to testify on the trial. Counsel for petitioner urges that no allowance should be made, on theground that the defendant has a separate estate of some $0,000; and cites several cases in support of his position. The rule as to alimony has, of course, been materially modified by the acts with reference to the rights of married women over their property; but the cases cited do not apply, for two reasons: First, the defendant does not have this property absolutely, but chiefly because the expenses now sought to be obtained in this manner were incurred because the petitioner brought the defendant from her home in the far west, to be present at the trial. He wanted her, no doubt, for the purpose of identification, and the chancellor imposed the expense of her carfare as a condition of her compliance. An order was made on the opening of the decree to permit the defendant to come in and answer; that the defendant should give her testimony orally in court, if the petitioner, her husband, elected to pay her car fare from Denver to Jersey City and return, and should give notice of his election, and make such payment, 15 days before the hearing of the cause. This option the petitioner exercised, gave the notice required, and paid the fare, and defendant came from Denver, and was present at the trial. She brought with her from her home in Denver her niece, Clarissa Dale, thus making the expense just double what it would have been if she had come alone. She urges the necessity for a traveling companion on the ground of her ill health. This is only her own opinion, as it is presented, there being no certificate or affidavit of a physician that such attendant was required. I am not prepared to say, if it was the case that she ought not to have traveled alone, that this allowance should be made in this way. The court ordered the husband to pay the wife's fare if he desired to have her present on the trial for examination as a witness, requiring him to give her 15 days' notice of this election to require her to come on. If she was not able to travel alone, application should have been made, either to relieve her from coming, or for an allowance for some one to care for her. Miss Dale was defendant's most important witness. It is true her testimony had been taken on commission, which defendant could use, but her presence in the court, when Rillings and Norris were examined as witnesses, was of vital importance to the defendant's case, and I much doubt, if defendant and her niece had not been personally present, and thus enabled to meet the case as presented by the detective and his witness, her counsel could have made the convincing defense he did. There is no provision of law for imposing on the opposite side the extraordinary expenses of a foreign witness, and, if parties find it expedient to have them in attendance, they must be satisfied, so far as costs are concerned, with those given to a witness within the state. I do not think defendant should be allowed for Miss Dale's traveling expenses from Denver to Trenton. The hotel expenses of defendant and her witness stand on a different ground. They were present in court on March 23d, ready for trial. It was post poned on the application of the petitioner, and the adjournment was granted on the terms that he pay a certain amount for the board and expenses of defendant and witness. I do not think it was out of reason that they put up at the hotel they did. They were entitled to stop at a respectable, comfortable place, and they do not appear to have been extravagant in their requirements. She should be allowed $17.80 which she paid for hotel expenses more than she received. I think it is fairly within the spirit of the chancellor's order to pay her car fare from Denver and return; that her necessary expenses on the trip, such as sleeping-car and dining car charges and meals, should be also paid. From her statement it appears that the traveling expenses of herself and Miss Dale were $221.45, one half of which —$110.73—she is entitled to be reimbursed. She has received $90.30; leaving still unpaid $20.43. Under the chancellor's order she was entitled to receive her car fare from Trenton to Jersey City on March 23d. Miss Dale was then a witness within the state, and entitled to one dollar a day, and a day's fees for every 30 miles, going and returning, and the charge of $5.50 for both is proper to be allowed. I decline to allow the amounts paid to counsel on executing the commissions, or for the expense of the commission. It was taken on interrogatories, and no counsel was necessary, and, as to the latter, the statute is express. Revision, p. 386, § 44. Counsel has been required to go away from Trenton nine times in connection with the case. He has been allowed $75. I will advise the allowance of an additional counsel fee of $50. I will advise an order for the payment of alimony pendente lite to cover the following amounts: Hotel expenses, $17.86; traveling expenses, $20.43 and $5.50,—aggregating $43.79; and an additional counsel fee of $50.