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ever should be found due from her to Buettner, and submits herself to the jurisdiction of the court.

to live in it, while the work was being done. The original price, according to the plans and specifications, was $1,450; but before the contract was signed it was agreed orally between the parties that, for an additional sum of $50, Buettner should make and finish off two rooms in the attic, and the sum of $1,500 was inserted in the contract, but the additional work in the attic was not inserted in the specifications. This work in the attic he never did, except in part. Besides that default, the roof was so entirely defective that the amount of $60 was fixed in the award as the amount which it would cost to put a new roof on. Then the piers under the piazza were, by the specifications, to be 12-inch square brick piers, and they were in fact only 8 inches square.

To the extent, of course, that Mrs. Kiefer is liable under the statute to the Consumers' Coal & Ice Company, she is entitled to protection as against the order of Buettner in favor of the complainants. There is no serious dispute about the principal facts of the case. It is admitted that the complainants' order is not based on any materials furnished to defendant's building, and, if it were, it would not be of any advantage to them, under the decision of the court of errors and appeals in Association v. Williams, as reported in 43 Atl. 669. And it is further admitted that the stop notice of the Consumers' Coal & Ice Company was based on an indebtedness due from Buettner to it for materials which were used on Mrs. Kiefer's house, for the amount stated in the notice, for which a demand had been made, and which Buettner had refused to pay. The question, then, between the parties, is simply which has precedence on the fund in the hands of Mrs. Kiefer, the complainants, or the Consumers' Coal & Ice Company, which latter are not parties to the suit, but which conducted the defense for Mrs. Kiefer. It will be observed that the submission to arbitration did not provide that the arbitrators should find whether any money was due from Mrs. Kiefer to Mr. Buettner, but simply "to submit the matters in difference between them concerning the kind and quality of materials used, the kind of workmanship, and the works omitted, if any, and all extra work and materials, and all deviations from the plans and specifications." The arbitrators found as follows: "First. We do award that said W. John Buettner deduct from the contract price named in the contract the sum of fifty dollars, as previously agreed upon between said Buettner and said Elizabeth Kiefer, for the omission of the two attic rooms. Second. We do award that the said W. John Buettner deduct from said contract price the sum of sixty dollars for defective workmanship on the roof of said building, and the further sum of twelve dollars for defective workmanship and inferior material in the piers under the front of said building, and the further sum of five dollars for defective workmanship in the plumbing work of said building. Third. We do award that the said W. John Buettner is not entitled to any compensation for works claimed by him to be extra work on said building. Fourth. We do award that the said W. John Buettner shall deduct from the contract price the sum of thirty-seven and 50/100 dollars, as one-half of the expense of these proceedings, and that the said Elizabeth Kiefer shall then immediately pay to said arbitrators the whole of said expenses." It was further proven that the work done under the contract was simply the putting an additional story on a one story and a half house In the actual occupation of Mrs. Kiefer. She did not move out of the house, but continued | ing that act the court of errors and appeals

Buettner contended that he did all the work in the attic which he agreed to do, that he did not agree to do the mason work, and that he did set the partitions ready for the ma sons. But he did not hang the doors, and his story that he was not to do the mason work is simply absurd, since by the written contract he was to do all the work,-mason and carpenter work, plumbing, and tinning. So that it is proven as a fact in this cause that he never finished the building, and never became, in law, entitled to sue for and recover the last payment. This is substantially admitted by the complainants. But they contend that the submission to arbitration was, in effect, an acceptance of the job by the defendant, and that on signing it a sum of money became due from her to Buettner; the amount to be determined by the award of the arbitrators. I am unable to adopt this view. No money was due from Mrs. Kiefer to Buettner until the award of the arbitrators was made, and it may be an open question whether even after that an action at law could be maintained. He had never fulfilled his contract, and non constat that the arbitrators would ever make an award. The submission might be revoked, or the arbitrators might die or fail to agree. And I am of the opinion that the actual making of the award was an absolute prerequisite to any cause of action by Buettner against Mrs. Kiefer. The stop notice of the Consumers' Coal & Ice Company was served on Mrs. Kiefer before the award was made. That being so, I am unable to see how the complainants can have preference over the Consumers' Coal & Ice Company. The fifth section of the mechanics' lien law, as amended March 14, 1895 (Gen. St. p. 2073), provides that if the owner of a building shall, in advance of the terms of such contract, pay any money or other valuable thing on such contract, and the amount still due to the contractor after such payment has been made shall be insufficient to satisfy the notices served in conformity with the provisions of the third section of the original act, such owner shall be liable in the same manner as if no such payment had been made. In constru

in Slingerland v. Binns, 56 N. J. Eq. 413, 39 Atl. 712, at page 415, 56 N. J. Eq., and page 713, 39 Atl., said: "It directs that the owner shall not in any way discharge his liability to pay under the contract until, according to the terms of the contract, the time to do so has arrived, in order that until that time such liability may be preserved for the benefit of workmen and material men who serve the statutory notice. This enactment affords a reasonably clear indication of a legislative purpose to give to persons entitled to serve the statutory notice an inchoate lien upon the liability of the owner under the contract until that liability matures, according to the terms of the contract; such lien to become perfect on service of the notice before the liability matures, but to expire on such maturity if no notice has been given." This view was reiterated by the court of errors and appeals in Association v. Williams, 43 Atl. 669. In my judgment, the payment to Buettner never matured and became due until after the arbitrators had made their award. My conclusion, therefore, is that the claim of the Consumers' Coal & Ice Company must be first satisfied, before the complainants are entitled to any payment on their order; and as the complainants have claimed priority over the coal and ice company, and been defeated, the defendant's costs must also be paid. The result will be, I suppose, that the complainants will get nothing.

STREITWOLF v. STREITWOLF. (Court of Chancery of New Jersey. Aug. 4,

1900.)

DIVORCE-EXTREME CRUELTY-ALIMONY. 1. Complainant and defendant had lived together for 16 years, when, in 1893, complainant commenced to drink intoxicating liquor, and defendant began to consort with other women, and contracted a venereal disease. The wife testified that he then became ill-natured and violent, frequently striking her, and on occasions, if his food did not please him, would throw plates at her. Defendant claimed that, owing to drink, complainant's person became so offensive to him that he could not occupy the same bed with her. In 1895 defendant sent the wife to a retreat for the cure of alcoholism, and then wrote her that she could not return home, and made provision for her separate maintenance; but a reconciliation was effected, and she returned. At that time she had dropsy, but the family physician did not attribute it to the use of liquor. There was a conflict of testimony as to the extent of complainant's indulgence. Defendant testified that at times she was not responsible for her acts. The physician testified that her condition never approached that of delirium tremens. On complainant's return from the retreat they lived, as before, over defendant's liquor store; and subsequently, in the presence of a third party, defendant accused complainant of adultery, and struck her, and she struck him. She left him, and filed a bill for divorce; and, before answering, defendant secured a divorce in North Dakota on the ground of adultery and excessive use of liquor, which decree was held void in New Jersey. There was no evidence of adultery on the part of complainant. Held, that complainant was entitled to a divorce on the ground of extreme cruelty.

2. Where defendant in divorce proceeding had an income of about $2,300 per annum, and, while not in robust health, was able to attend to business, and complainant, while somewhat shattered in health, was able to do something for a living, and her labor had contributed largely to defendant's fortune, she was entitled, on recovering a divorce, to alimony to the amount of $16 per week.

Suit by Elizabeth Streitwolf against August Streitwolf for divorce. Decree in favor of complainant.

A. H. Strong, for complainant. W. P. Voorhees and Robert Adrain, for defendant.

PITNEY, V. C. The complainant files her bill for divorce from bed and board, and for permanent alimony, based upon a charge of extreme cruelty practiced upon her by the defendant. The bill specifies particular acts of cruelty, including personal violence. In general, the defendant denies the violence, charges tantalizing, aggravating, and provoking conduct on the part of the complainant, and admits that on two or three occasions, when so provoked, he had struck her. He sets up as a cause of her misconduct that she had became addicted to the inordinate use of intoxicating liquors.

Before entering upon the merits of the case, I deem it worth while to give the history of the litigation: At and prior to the 3d day of August, 1896, the parties were living together at the house of the husband, in the city of New Brunswick. On the evening of that day an altercation took place between them, accompanied with physical violence on each side. The parties were separated by mutual friends, and the complainant immediately left the house of her husband; he at the time telling her that she should never come back. The bill in this case was filed on the 17th of August, 1896,-a fortnight later. The answer was not filed until the 19th of August, 1897. On the 18th of August, immediately following her bill, the complainant filed a petition for alimony pendente lite, with affidavits. The defendant answered that petition, with accompanying affidavits, which were verified in September, 1896, but which were filed at the time of the argument,-November 2, 1896. On that day an order for a counsel fee and alimony pendente lite was made by the chancellor. About the 1st of January, 1897, the defendant left the country, visited the Mediterranean, and returned about the 1st of April. Negotiations were opened between the parties for a settlement of their difficulties, which bore no fruit; and shortly after the 1st of May, 1897, the defendant left New York for the far West. On the 17th of August, 1897, the complainant was served with a copy of a complaint, and process thereon, purporting to be filed in the district court of the Sixth judicial district of the state of North Dakota, in a suit brought by the defendant against the complainant for divorce on three grounds: First. Cruelty practiced by complainant herein upon the defendant. Second. For adultery committed by her in the year 1880 with one J. S. C., of the city of New Brunswick; also, adultery committed by her in the month of August, 1895, with one W. F. S., of the city of New Brunswick; and other acts of adultery not specified. Third. That the complainant was addicted to drinking intoxicating liquors to excess. On the 7th of September, 1897, the complainant presented a petition in this cause to the chancellor, and obtained from him an injunction against the defendant, forbidding him to proceed with said suit in North Dakota. Notwithstanding that injunction the defendant proceeded with his suit, and on the 7th of October, 1897, the Dakota court granted a decree of absolute divorce, based upon findings of fact (1) that the complainant herein had been guilty of cruel and inhuman conduct towards the defendant; and (2) that she had been in the habit of using intoxicating liquors to excess, and thereby disqualified herself from attending to her duties as a wife. Complainant herein filed a supplemental bill on January 11, 1898, praying relief against the decree in Dakota on the ground that that court had no jurisdiction of her person or of the cause of action. The answer to that bill was filed on the 6th of April, 1898. In the meantime, however, after obtaining the decree in Dakota, the defendant had again left the country, and was traveling in Europe. Being advised of the supplemental bill, he returned. The cause on the original and supplemental bills, being at issue, was referred to a vice chancellor on June 14, 1898, and the cause arising on the supplement brought to hearing on November 16, 1898, and a decree made on the 18th of November, 1898, declaring the Dakota decree to be void as against the complainant. See 41 Atl. 876. An appeal was taken from that decree January 7, 1899, and it was affirmed by the court of errors and appeals June 19, 1899, as reported in 43 Atl. 683. In the meantime the cause on the original bill was brought to hearing on the 19th of April, 1899, and continued from time to time until March 29, 1900, occupying seven days in its production.

The business was prosperous, and in about the year 1885 the defendant gave it up and commenced the wholesale liquor business. He occupied living apartments over his store in New Brunswick. This business was also prosperous. The defendant accumulated money. His wife also assisted in, and gave personal attention to, the business. In 1891 he purchased a lot on Burnett street, in New Brunswick, and erected a commodious and convenient store for his business, with two floors of living apartments above, the first floor containing dining room, kitchen, and appurtenances, above which were four or five sleeping apartments, with bath room and water-closet. One child-August Streitwolf, Jr.-was born to them in 1879. They were an affectionate and loving couple. The wife was a most devoted and loving wife. She was, in fact, and, in my judgment, continued to be to the last, in love with her husband. The evidence to this effect is all uncontradicted. They lived happily until about the year 1892 or 1893. A servant girl who lived in the family in 1891 and 1892 testifies to the effect that during the time she lived there she knew of no trouble between the parties. In 1893 the unhappiness commenced, and continued until the separation in August, 1896. Each party charges the other with being responsible for this. The wife swears that the husband developed a desire for the society of other women; that she discovered on two or more occasions that he was afflicted with venereal disease. She charged him with going with other women, and he admitted it, and gave the details, -specified one woman in particular with whom he was wont to enjoy himself. This evidence, positively sworn to by the wife, and brought out by questions put by counsel of defendant, was not denied by the husband, and I must assume it as an established fact in the case. The wife swears that with that habit of going with other women came a studied neglect of her, and a carping, fault-finding habit, being dissatisfied with everything that she did, including her cooking; that he became morose and ugly in disposition, and on several occasions struck her; if the food did not suit him, would throw plates at her. The husband admits that on several occasions she, by her tantalizing manner, provoked him to acts of violence. That he did frequently commit acts of personal violence upon her is proved by the clear weight of the evidence, both direct and circumstantial. His father-in-law and brotherin-law swear that he admitted it to them, and promised not to do so any more. Several witnesses swear to having seen marks of violence on her face and person, which, to persons she met casually at the time, she attributed to causes other than her husband. But she swears that she did this in order to shield him from censure. The defendant swears that his wife became addicted to intoxicating drinks to excess, and about 1893 became so offensive in her person that he could not enand refused so to do. The evidence tends to show quite clearly that she on several occasions sought his bed in the night, and that he repulsed her. This evidence, in my view, is corroborative of the theory that she was in love with him, and desired the comfort and caresses which a wife is entitled to from her husband; and it also supports her allegation that her husband's affections were weaned away from her and given to other women. The husband asserts, and brings abundant evidence to prove, that his wife did become addicted to the use of intoxicants. Much contradictory evidence on this subject was givWitnesses for the wife, whose sincerity can hardly be doubted, swore that they saw her on occasions when it was testified on the other side that she was drunk, and that they saw no signs of intoxication upon her. Much of the evidence on the subject of intoxication, as well as on other points, is difficult to reconcile. But I am satisfied that the wife did become addicted during the last three years of her cohabitation with her husband to the use of intoxicants to a degree which was injurious to her health, and in part supports the theory of the husband. In fact, he swears, and I think the evidence warrants the conclusion, that she was at times quite beside herself, and not responsible for her acts. But her attending physician, who was relied upon by the defendant to establish her excessive use of intoxicants, is quite positive that her condition never approached that of delirium tremens or mania à potu. During the course of the year 1895 she had one or two attacks of dropsy, and other symptoms, which her family physician attributed to the use of liquors. I think his theory, in part, at least, was right; but I think the extent of her drinking was not so great, or her desire for it so deep-seated, as either the physician thought, or her husband and his witnesses testified. In the last days of December, 1895, the husband determined to send his wife away to a retreat for the cure of her desire for drink, called a council of her family, and stated to them distinctly that he would not live with her any longer unless she did abstain from the use of intoxicants. In this connection it must be stated that she had free access to liquors in the defendant's store, and no means were taken by him to prevent it. He used liquors himself on the table, and in fact afforded her ample opportunity to indulge. The result of the family council was that the husband and the complainant's brother August Landmesser, an alderman of New Brunswick, took the complainant to a retreat at Westport, Conn. There was an insane asylum connected with it, but there was also a voluntary department, in a separate building, where persons could stay and be treated. She was placed by her husband in the voluntary department, as a person afflicted with the rum disease. After she had been there a day or two the defendant wrote his wife a letter dated January 4, 1896, as follows:

The solution of the questions presented by the pleadings requires a consideration of the whole of the married life of these people. The complainant is of German origin, but born in this country, and has lived from her infancy in the city of New Brunswick, where her father and mother and several of her brothers and sisters have lived. Her father is a barber, and the family are industrious and respectable, of moderate education and culture. The defendant is German born. The parties were married in June, 1877. The business of the husband for the first seven or eight years of their married life was that of keeping a drinking saloon, with restaurant attached, in New Brunswick. To this business he and his wife gave their personal attention; the wife taking part mainly and naturally in the eating department, but assisting, also, in the dispensation of liquors. | dure the occupation of the same bed with her,

en.

"New Brunswick, N. J., Jan. 4, 1896. Lizzie: A few minutes before your telegram came here I mailed Check to Dr Ruland for 30 Doll for next weeks board. I am sorrow to hear you are sick but I cannot come to Westport and further more not intend to. After this next Week I propose that you must take care either yourself or get your relatives to do so. As far as I am concerned I dont intend to make another move in your behalf. I wrote to you from Germany (last year allready to Atlantic City) plain and candit what I exspected you to do in the future and if you failed therein what the result would be. Well the time has come; You have had more than another chance and You have voluntarily thrown it away, and we are to part now, at least for the present, and You must certainly present strong proof of evidence of changing for the better before you ever get back to my house again. The doors are barred against You as much as any stranger, and none of my help will except your Order or anything else any more than from any stranger they have my instruction to this effect and I will take care that there are carried out to the point. Now as far as Your person concerned I propose to do as follows: First. You to receuve the sum of ten Dollars per Week on each Monday, payable at the Peoples National Bank on proper receipt. Second. You to receive all Your Wardrobe, linen, Brick a brack on Your Order to be delivered with all possible care to such place or places as You may designate. Third. All your Jewelry & ect. to be delivered to You with the exception of one Diamond pin, this I withold for the reason that you have repeatedly charged me from stealing it from you, and for this reason you shall never have the satisfaction of waring it again. All these points will be carried out to the point providet You acept these terms quietly and submissive without any public notoriety or without causing any anoyance either to me or any of my employees at my place of buissnes, if such should take place I be obliged to invoke the Law and then I would stop every thing; leaving the matter entirely to the Court to settle. However I hope you have some common sence left, or at least some of your relation have some, to advise you that the quiestest way out of this properly is the best one for all concerned. In parting I assure you I have no bitterness against you any more I feel sorrow, but I have relented time and time again and forgot and forgiven and I feel I am going all to pieces this continued annoyance and trouble and after trying every remedy I see only one left and if it is a herois masure it is properly for the best of both of us. This is final: Farewell. A. Streitwolf.

"P. S. The Boy will go back Monday evening and stay up there for the present he can see or communicate with you at his own sweet will after the ending of this term I shall make other arrangements for him."

Again, on the 8th of January, he wrote her as follows:

"New Brunswick, N. J. Jan 8, 1896. Mrs. Streitwolf: Your letter received. You shall have your pin along with all the rest of your things to satisfy you. You only said in Hoeys the other morning I stole your pin. The girl is going away tomorrow and the House be closed up I going to Board. All the rest of your letter is of no consequence enough to give any reply to it. I paid your Doctor Donnohue bill to day of $119.50 Doll. and quared all other Bill you contracted at Butchers & Grocers, and there will be no more of them. Yours truly A. Streitwolf."

On the 10th of January he wrote to her father as follows:

"New Brunswick, N. J., Jan. 10, 1896. Mr. Chas. Landmesser, City-Dear Sir: I have to recognise the fact that I cannot and will not take any personal responsibility or care of Mrs. Lizzie Streitwolf, your daughter, in the future, until such time she can prove to me that she has changed in her personal habits and desires. I am, and have been for a long time past, afraid that some calamity would happen sometime, which would cause endless pain and trouble to all her friends. To avoid such possibilities, and recognising the fact that you have a large family, with a number of young ladies, all her sisters, naturally the most desirable companions for her; I think and insist, then, that you ought to care for her, and by dint of good usage, and care, restore her, if possible, back to herself and her family. Of course, I do not mean to say that I will not care for her financially. I have made arrangements with the People's National Bank, of this city, to pay Mrs. Streitwolf Ten Dollars per week, on her signature; or should she prefer, I would as soon make out a check for her weekly or monthly. I hope and trust you will look into this matter with the sense of coolness it requires. I wish to avoid public talk, at almost any cost; but, if it must be a metter of publicity, well and good. I am not afraid nor unprepared to fight, and if so, to a finish, as much as I fear the public tongue. Yours, truly, August Streitwolf."

On the 9th of January, 1896, Mrs. Streitwolf left the retreat at Westport, and went to the house of her sister Mrs. Ficken, in Jersey City, and remained there until the latter part of March, when, by her husband's consent, she returned to his house in New Brunswick. While at Jersey City he wrote her as follows:

"New Brunswick, N. J., Jan. 17, 1896. Mrs. Streitwolf: Your letter of yesterday to hand. You can get Strong brothers or they devil if you like! I send you to day your Jewerly and I might as well tell you now as any time that if anything is still in this house you think you have any claim to it state so at once, and then hold your peace. Hereafter you get your allowance and no more, this house is closed for you forever! and you spare me and yourself annoyance if you will cease writing in the future. A. Streitwolf." 47 A.-2

And a week later he wrote her again as

follows:

"New Brunswick, N. J., Jan. 24, 1896. Mrs. Lizzie Streitwolf, Jersey City, N. J.-Madam: Having the house cleaned up this last Week I found a lot of things such as lace, silks, paints & ect. and I forward it all to you by Ex. to day. There now remains one easel, two small tables and a large bowl in Parlor, these later presents I believe of Your brother, these things are to bulky nor have I the time to pack them for shippment to You, however these will be delivered if desired, to any one on Your Ordre. I also send you some Photos out of the Albums reserving you the right however to ask for any other picktures in said Albums you may desire. Now if there is anything else you desire or claim you please will make such demand knowing to me within one Week from date, try to confine yourself however to such Articles as have not been purchased, as of these I have forwarded to you all I intendet to. I also refuse you the Pocketbook and Umbrella I recently brought from Europe, because you have more than a sufficient number of these Articles for present use, and most likely and natuarlly be used for some one elses benefit. The Girl has informed me that I have send a black silk cape belonging to her and hung in same closet along with your clothes. You please return the same without delay, and ought to have been done before now, if you had looked over your goods. Yours very truly, A. Streitwolf."

The defendant swears that he refused to allow her to come back, except upon terms and conditions, which he states in his evidence were the following: "'First, that you have to come back to your household affairs and look after it; secondly, you don't go down and run any bills in the different stores you trade with; and, third, and mainly, you must abstain from drinking any liquor, in any shape or form whatever. Fourth and last, that your conduct and your action-your behavior towards me-must be of a different style, and be more kind and less abusive than formerly. In other words, that you are to be a kind and agreeable woman, instead of abusive and scolding as you have been heretofore. And on this I will take you back on probation. You leave your things here, taking nothing with you except your necessary clothes, because I am afraid you will not live up to it.' I did state before I made any condition that she must make up her mind whether to live with me or with her people. She said I had done right in ordering her sisters away from the house, or keeping them away from the house; that they had been too fresh, entirely, and had said things that they had no right to say; and she said I done perfectly right in doing as I did." After she returned to her husband's house, no trouble arose for several days, and then the old state of things revived. She began to drink, and he began to treat her in the

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