Opinion
05-15-1914
BECKER v. BECKER.
Aquila N. Venino, of Newark, for complainant. Philip R. Van Duyne, of Newark (Lehlbach & Van Duyne, of Newark, of counsel), for defendant.
Bill for maintenance by Annie Becker against Jacob Becker. Plea of former judgment overruled.
Aquila N. Venino, of Newark, for complainant. Philip R. Van Duyne, of Newark (Lehlbach & Van Duyne, of Newark, of counsel), for defendant.
EMERY, V. C. The plea filed in this case is defective by reason of its failure to allege that the defendant has paid and continued to make the weekly payments to the overseer of the poor directed by the order of the juvenile court, up to the time of filing the bill. The opinion of Chancellor Walker in Roarke v. Roarke, 77 N. J. Eq. 181, 75 Atl. 761 (1910), as to the effect of the orders of, such courts, either as the result of election of remedies or as res adjudicata, is expressly based on the continued performance of the order. See 77 N. J. Eq. 182, 75 Atl. 762, where the question is stated. And the final order made on the application, which was for temporary alimony, was not a denial of complainant's right to have relief, either under the bill or by a subsequent application. The application under the pending bill was denied, "but without prejudice to its renewal as above indicated"; i. e., as I read the opinion, if the payments to the overseer for her benefit were not made. The bill was not dismissed, and evidently, if the payments to the overseer directed by the order by the juvenile court are discontinued, the bond securing payment being, under the statute (Disorderly Persons, Rev. 1898, p. 949, § 24), given to the officer and not to the wife, she has no remedy which, at her own choice, she is entitled to apply to enforce her husband's marital obligation. She cannot herself enforce the bond to the overseer nor compel him specifically to enforce it, and while the order of the juvenile court, where the wife herself makes the complaint, may be res adjudicata in the sense of deciding between the husband and wife, the question of abandonment and failure to support, and also the amount necessary for support, yet certainly the order to pay does not of itself pay, nor does it give the wife personally any remedy for payment. And, if the husband fails to obey the order, then, so far as the wife is concerned, the noncompliance with the order supplies additional proof of continued abandonment, under the divorce act, and gives, in my judgment, additional reason for relief to the wife on proceedings controlled by herself alone under the Divorce and Maintenance Act (P. L. 1902, p. 502).
To hold that an order for future continued payment to him for the wife's benefit, obtained by an overseer of the poor in a proceeding on behalf of the public and for its relief, deprives the wife of her own remedies against her husband or his property for maintenance under the Chancery Act (P. L. 1902, p. 510), if the payments to the overseer for her benefit are not made, and to rest this result on the supposed application of the legal doctrines of election of remedies by the wife or res adjudicata, as between herself and husband, seems, on the face of it, to be a perversion of rules of procedure intended in their proper application to work out substantial justice.
The plea will be overruled.