take a part only; he has the right to all or none. I will advise a decree in accordance with these views. (83 N. J. E. 88) BOARD OF TENEMENT HOUSE SUPER- SCHLECHTER. result in the lowest floor being counted as a story and the other would not, it was incumbent on the plaintiff to show facts which would require the application of the former meaning. [Ed. Note.-For other cases, see Health, Cent. Dig. § 37; Dec. Dig. § 38.*] Appeal from District Court. Action by the Board of Tenement House Supervision of New Jersey against Mary J. Schlechter. From a judgment for defend (Supreme Court of New Jersey. June 25, ant, plaintiff appeals. Affirmed. 1912.) (Syllabus by the Court.) Argued February term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ. Josiah Stryker (Edmund Wilson, Atty. Gen., on the brief), for appellant. Hugh B. 1. STATES (§ 215*)-COSTS-STATE AGENCIES. [Ed. Note. For other cases, see States, Cent. Dig. 203; Dec. Dig. § 215.*] 2. STATES ( 215*)-PERSONS LIABLE-STATUTORY PROVISION. In this respect section 242 of the Practice Act (3 Comp. St. 1910, p. 4126) applies to district courts as provided by section 68 of the District Court Act of 1898 (2 Comp. St. 1910, p. 1977). [Ed. Note.-For other cases, see States, Cent. Dig. § 203; Dec. Dig. §.215.*] 3. APPEAL AND ERROR (§ 374*)—PROCEEDINGS TO TRANSFER CAUSE-APPEAL BOND. Hence, in an appeal from a judgment for defendant upon such prosecution in the district court, the board need not enter into an appeal bond. SIONS. If the time be so extended as to make it impracticable to bring on the appeal by due notice at the next term, the requirement that such appeal be heard at the next term after the "determination or direction" of the district court is not applicable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3198; Dec. Dig. 817.*] 6. PENALTIES (§ 33*)-ACTIONS FOR PENALTIES-SUFFICIENCY OF EVIDENCE. In a prosecution under a penal statute, the evidence should show a case clearly within the terms of the statute. [Ed. Note. For other cases, see Penalties, Cent. Dig. §§ 31-34; Dec. Dig. § 33.*] 7. HEALTH (§ 38*)-VIOLATIONS OF REGULA TIONS-ACTIONS FOR PENALTIES. The question being whether the lowest inhabited floor of a tenement house should count as a "story," and this depending on whether it was a "basement" more than five feet above the "grade," and assuming that "grade" is synonymous with "curb level" as used in the statute, but the word "curb level" being suseptible of two meanings one of which would PARKER, J. We take up first the motion to dismiss the appeal. This is urged on several grounds. The first ground is that no bond was entered into as required by Act 1902, p. 565, as amended in 1910 (2 C. S. 2016, pl. 213a). [1] But it is plain that the appellant is a state agency. 4 C. S. p. 5354, § 203. Consequently the usual rule as to costs does not apply. See 30 N. J. Eq. 667, note. [2] Section 242 of the Practice Act (3 C. S. p. 4126) is no doubt applicable under section 68 of the District Court Act. (2 C. S. p. 1977.) [3] As there is no money judgment for defendant, there is nothing for a bond to se cure. [4] The next ground is that the judge was without jurisdiction to settle the state of the case. The judgment was rendered on September 8th and normally the case should have been settled by September 23d. 2 C. S. P. 2017, pl. 213c. Under the power given by that section to extend the time, Judge Day of the district court of Morris county as acting judge of the court when the case was tried (2 C. S. p. 1959, 19) granted an extension until October 20th; and on Octo ber 17th Judge MacLear of the trial court granted a further extension until November 24th. The case was settled by Judge Day on November 17th. The point made is that the extension by Judge MacLear was invalid, as he did not try the case, but this is not essential; for it should be remembered that primarily the case is to be settled by the parties or their attorneys, and there is no reason why the power to extend the time for them to agree on a case, if possible, should be confined to the judge that tried the case. The extension of time may properly be granted by the judge conducting the court for the time being, and in granting thig extension Judge MacLear was manifestly attending to the business of his own court. The ultimate settlement of the case properly devolved on the trial judge. [5] The last ground is that the appeal was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes line where the same exists, taken at the center of the street frontage; where the walls of a building do not adjoin the street or building line, then the average level of the ground on which the building stands may be taken as the curb, at the direction of the board." There is no definition of the word “grade" in the statute. Bearing these particulars in mind, we proceed to apply them to the findings of fact. not heard in this court at the next term specifically stated." By section 10 "a cellar after the judgment below, and that more is a story more than one-half below the level than 20 days intervened between such judg- of the curb and for the purposes of this act ment and the next term of this court. 2 C. shall not be counted as a story unless otherS. 2017, pl. 213d. This is another section wise specifically stated." (Italics mine). Parof the appeal act of 1902 (page 566). All the agraph 17 provides that "the word 'curb' sections of that act should be read togeth- for the measurement of heights shall be taken er; and clearly the Legislature never meant to mean the level of the established curb to cut off appeals in cases where the court below by extensions of time, perhaps at request of parties, puts it out of the power of appellant to bring the appeal on for hearing according to the course of practice in this court. In the present instance, when the case was settled on November 17th, this court had closed its regular session for oral argument of cases some days previously. Inasmuch as this appeal is classified as litigated common business, being in the nature of a certiorari (Green v. Heritage, 64 N. J. Law, 567, 46 Atl. 634), it cannot be brought on except by giving 10 days' notice and for the beginning of a term. Rule 76. The appeal act should not be construed to require impossibilities, and the requirement that the appeal should be heard at the next term after judgment is plainly inapplicable to cases where the state of the case is lawfully delayed so long as to render it impracticable under the law and rules of court to bring the appeal on for oral argument during the session of the court at such next term. The motion to dismiss the appeal will be denied; and this brings us to the merits. The building was known as No. 17 Breintnall place. It does not appear whether or not it adjoined the street or building line, "nor that the board, if it did not, made any direction that the average level of the ground be taken as the curb." It does appear that the "basement" was inhabited, that its floor was on a level with the curb in Breintnall place, and that the ceiling was 5 feet 3 inches above such level, and that the natural surface of the lot was three feet higher than such curb, and consequently three feet of the "basement" was below such natural surface, which should properly be regarded as synonymous with the "average level of the ground on which the building stands” in the language of the statute. If this low-ceiled basement, only 54 feet high, was a "cellar," it would not count as a story. It was a "cellar" if more than one-half below the level of the "curb." If it was a "basement," it did not count as a story if not over 5 feet above the "grade." Counsel for appellant ute is synonymous with "curb," and that the curb in Breintñall place is the datum of elevation. Granting for the sake of argument the first proposition, we cannot accede to the second. 1 [7] The action was brought to recover a penalty for violation of the Tenement House Act (4 C. S. 5321, 5351, § 190) against appellee as owner in failing to provide the house owned by her and described in the proceedings with fire escapes as required by the act. The requirement in question is in section 35, which reads in part as follows: "Every maintain that "grade" as used in the statnow existing nonfireproof tenement house, more than three stories high, unless provided with outside fireproof stairways directly accessible to each apartment, shall have fire escapes located and constructed as hereafter described. The building in question had no fire escapes or outside fireproof stairways, and the decision turned upon the question whether it was more than three stories high. If the basement should be counted under the statutory scheme as a story, the judgment was erroneous; if not, it was correct. This leads to an examination of some definitions contained in the statute itself. The word "story" is not defined. By section 9 a "basement" is a story partly, The proof not being sufficient to justify a but not more than one-half, below the level finding that the "basement" was more than of the grade, and for the purposes of this five feet above the grade, or that it was not act shall be counted as a story "if more than a "cellar," the judgment for defendant was five feet above the grade, unless otherwise proper, and should be affirmed. [6] The action being for a penalty, plaintiff must show a case strictly within the statute. 30 Cyc. 1358; Allaire v. Howell Works Co., 14 N. J. Law, 21. It was incumbent on the plaintiff below to show whether or not the walls of the house in question adjoined the street or building line, and, if not, whether there had been any direction of the board fixing the "curb" as the aver age level of the ground. (80 N. J. Eq. 424) ROSENSTEIN v. BURR. 1908. It was held that no fraud was shown, and that there was no evidence of violation (Court of Chancery of New Jersey. June 14, of the Connecticut Sunday law, and the bill 1912.) JUDGMENT (8 619*)-CAUSES AND DEFENSES MERGED AND CONCLUded. A defendant in a suit for specific performance of a contract for the sale of land, who has previously brought an unsuccessful suit to cancel the contract on the ground that it was invalid for fraud, and because executed on Sunday, is estopped by the decree holding the contract valid from defending the suit for specific performance on the ground that the contract was invalid on other grounds than those specified in the first suit. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1132; Dec. Dig. § 619.*] Bill for specific performance by William Rosenstein against Horace B. Burr. On final hearing on bill, answer, replication, and proofs. Judgment for complainant. Thomas P. Fay, of Long Branch, for complainant. W. M. Seufert, of Englewood, and C. J. Parker, of Manasquan, for defendant. HOWELL, V. C. On July 22, 1907, the defendant, Burr, was the owner of a tract of land at Oceanport which the complainant desired to purchase. The complainant sent Nivison, his agent, to Burr, the defendant, to negotiate for the purchase. Nivison gave Burr a check for $200, and took from him an agreement of which the following is a copy: "Received from Mr. William Rosenstein a check for $200.00 on purchase price of my farm at Oceanport and a check is to be forwarded to me on Tuesday for $300, or more, making in all five hundred dollars, balance of $3,000 to be paid on or before October the 1st, 1907. $3,000 to remain on bond and mortgage with privilege to pay off at any time at 5 per cent. and I to pay the taxes and insurance, purchase price six thousand and five hundred dollars, everything on the place to go in purchase price. Except furniture all tools, horse, cow, chickens, wagons and farming utensils if said William Rosenstein fails to pay the three thousand in, on or before October the first, 1907, he forfeit said five hundred he paid and gives up possession. Money possession to be given July 25, 1907. H. B. Burr. Witnessed by Henry L. Nivison. Dated July 22, 1907." was therefore dismissed. Burr v. Nivison, 74 N. J. Eq. 320, 69 Atl. 1094. An appeal was taken from this decree which was heard and decided in 1909. The decree dismissing the bill was affirmed. Burr v. Nivison, 75 N. J. Eq. 241, 72 Atl. 72, 138 Am. St. Rep. 554. 20 Ann. Cas. 35. This court held that Nivison was the agent of Burr in the transaction. The appellate court held that Nivison was the agent of Rosenstein. The record of the first suit was made evidence in this suit by the stipulation of counsel, and it will therefore be assumed throughout that Nivison was the agent of Rosenstein. The bill in the specific performance case alleges the so-called agreement and a tender of the purchase price, and prays that the defendant may be required to convey the premises in pursuance of the terms of the agreement. Two defenses are interposed; one is that the agreement relied upon is invalid for the reason that its terms were rejected by Burr before they were or could have been accepted by Rosenstein, the other is that there was a stipulation that the agreement should not be binding on Burr until it should have been made the subject-matter of a formal document to be drawn by a scrivener and formally executed. Neither of these defenses appears in the answer; they were developed at the hearing. The answer confines itself to a denial of the due execution of the so-called agreement and of the tenders alleged by the bill. The defenses now interposed appear to be an afterthought devised for the purpose of evading the prayer of the bill. When the first suit was brought to set aside the socalled agreement, the facts on which these defenses are based existed and could have been used by Burr as affirmative weapons of attack. In addition to his allegations of fraud and violation of law, he might have added the matters on which he now relies; they are entirely consistent with the causes that he did allege, and they tended toward the result for which he then prayed. It is the duty of one who brings a suit to include in it every cause of action which is consistent with the general purpose of his bill to put all his grounds of action in one complaint. In Fourniquet v. Perkins, 7 How. 160, 12 L. Ed. 650, it was held that a judgOn September 18, 1907, before the time for ment in a district court, being generally for the performance of the contract had arriv- the defendant, must be supposed to cover ed, Burr filed a bill in this court which pray- the whole case and not to have rested upon ed for the cancellation of the said instru- only a branch of it, viz., a release which was ment on the ground (1) that it had been ob- pleaded by the defendant; and that, where tained from him by fraud, and (2) that it a bill was filed in the circuit court by the was executed in Connecticut on Sunday, and same petitioners against the same defendthat it was void because violative of the ant, it was correct for that court to considConnecticut Sunday laws. An issue was er the question as res adjudicata. And in 'made which was heard before this court in Northern Pacific Railroad Co. v. Slaght, 205 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 83 A.-50 This is claimed by the complainant to be a contract for the sale of lands, and he files his bill against the defendant for the specific performance thereof. as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. U. S. 122, 27 Sup. Ct. 442, 51 L. Ed. 738, the same claim or demand and its effect as an court said: "Although there may be very estoppel in another action between the same different claims for the same thing, there parties upon a different claim or cause of can be only one right of property in it; | action. In the first case the judgment is an therefore, when a cause of action has result- absolute bar; in the second case it operates ed in favor of the defendant, and plaintiff claims the property in a certain thing, there can be no other action maintained against the same property for the same property, for that would be to renew the question already This case has been followed in this state decided, for the single question in litigation | (Paterson v. Baker, 51 N. J. Eq. 49, 26 Atl. was whether the property belonged to the plaintiff or not, and it is of no importance that the plaintiff failed to set up all his rights upon which his cause of action could have been maintained; it is sufficient that it might have been litigated." To the same effect is U. S. v. Cal. & O. Land Co., 192 U. S. 355, 24 Sup. Ct. 266, 48 L. Ed. 476. There a decree was rendered upon a bill in equity brought under an act of Congress to have patents for land declared void and forfeited and to establish the title of the United States to the land. This was held to be a bar to a subsequent bill brought against the same defendants to recover the same land, on the ground that it was excepted from the original grant as an 'Indian reservation. Speaking of the two suits, the court said: "The best that can be said, apart from the act just quoted, to distinguish the two suits, is that now the United States puts forward a new ground for its prayer. Formerly it sought to avoid the patents by way of forfeiture. Now it seeks the same conclusion by a different means; that is to say, by evidence that the lands originally were excepted from the grant. But in this, as in the former suit, it seeks to establish its own title to the fee." See, also, Beloit v. Morgan, 7 Wall. 619, 19 L. Ed. 205. The decision of the case, therefore, appears to rest upon the principles which control the action of the court in relation to res adjudicata. It was held by the Supreme Court of the United States in the leading case of Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195, that a judgment was a finality as to the claim or demand in controversy, concluding parties, and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose; and it cites the case of a judgment rendered upon a promissory note which is conclusive as to the validity of the instrument and the amount due upon it, although it might be subsequently alleged that perfect defenses actually existed of which no proof was offered, such as forgery, want of consideration, or payment, but it was held in the same case that there was a difference between the effect of the former judgment as a bar or estoppel against 324; Clark Thread Co. v. William Clark Co., 55 N. J. Eq. 658, 37 Atl. 599; Mercer County Traction Co. v. United N. J. R. R. & Canal Co., 64 N. J. Eq. 588, 54 Atl. 819), and may be considered as settled law in this court. The converse of the proposition to be worked out in this case was decided in N. Y. Life Insurance Co. v. Bangs, 103 U. S. 780, 26 L. Ed. 608. There an action at law was brought against the Life Insurance Company on policies of life insurance in which the plaintiff recovered. Subsequently the company brought suit in equity to set aside the policies on the ground of fraud, to which the former recovery was pleaded as a defense. The court said: "The judgment in the action at law was a bar to this suit. Its recovery concluded all matters which might have been urged as a defense to the policies; a fraudulent purpose in procuring them subsequently carried into execution would have been a good defense. It was in fact originally pleaded and afterwards withdrawn; its withdrawal did not authorize à suit in another form for its establishment against the demand of the plaintiff. When an action at law is brought upon a contract, the defendant, denying its obligation either from payment or release or any other matter affecting its original validity or subsequent discharge, must present his defense for consideration. A recovery is an answer to all future assertions of the invalidity of the contract by reason of any admissible matter which might have been offered to defeat the action." These principles apply directly to the case in hand. In the former suit the issue was whether the so-called contract was valid. Two grounds of invalidity were asserted; two further grounds of invalidity existed but were not alleged, and are now made the basis of a second attack upon the validity of the contract. It is quite manifest that the question now raised was raised and decided adversely to the present defendant in the former suit, and he therefore cannot have the question relitigated in this proceeding. He is bound by the decree in a former suit. Besides the parties ought not to be given the opportunity to split up their causes of action or their defenses and attempt to hold them in reserve for purposes of attack or defense in future litigation, for the reason that it is to the interest of the state that there should be an Upon these considerations I am compelled | dissoluble, and therefore by it the husband to reach the conclusion that the defendant could never have been placed under obligahas had his day in court, and must make a tion to provide for the expenses of its disconveyance in accordance with the terms of solution. Such an event was a legal imposbis contract. sibility. Necessaries are to be provided by I will advise a decree in accordance with a husband for his wife to sustain her as his these views. (80 N. J. Eq. 429) KUNTZ v. KUNTZ. wife, and not to provide for her future condition as a single woman or perhaps as the wife of another man. To the same effect are the opinions of Williams v. Monroe, 18 B. Mon. (Ky.) 514; Morrison v. Holt, 42 N. (Court of Chancery of New Jersey. June 18, H. 478, 80 Am. Dec. 120; Coffin v. Dunham, 1912.) 1. HUSBAND AND WIFE (§ 19*)-NECESSARIES -COUNSEL FEES. In a wife's suit for maintenance, the court cannot, after the parties have become reconciled and resumed cohabitation, order the husband to pay a counsel fee to the wife's attorney on the theory that the attorney's services were necessaries, since the husband's liability is only for such necessaries as are required to maintain her as his wife, and not such as to provide for her future condition as a single woman. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*] 2. HUSBAND AND WIFE (§ 295*)-ACTION FOR MAINTENANCE-ABATEMENT. Where, while a bill for maintenance was pending, the husband and wife were reconciled and resumed cohabitation, the cause of action was thereby abrogated, although the bill was not formally dismissed, and neither party could take any action adverse to the other, and hence a motion by the wife's counsel for counsel fee, necessarily made in her name, was not maintainable. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 1084-1088; Dec. Dig. 8 295.*] Bill for maintenance by Carrie Kuntz against Jacob Kuntz. On motion for counsel fees. Motion denied. 8 Cush. (Mass.) 404, 54 Am. Dec. 769. It will be found, upon an examination of the cases, that the courts which have decided otherwise have been constrained to do so by the terms of some controlling statute. It has been held in this state that an action will not lie directly against the husband for services rendered by a solicitor to the wife on an application in defending a divorce suit, and that the solicitor's only remedy is by application to the Court of Chancery for an allowance. Westcott v. Hinckley, 56 N. J. Law, 343, 29 Atl. 154. [2] There is, however, another reason why this motion cannot prevail, and that is that the reconciliation between the parties has abrogated the cause of action, and the suit as a legal proceeding no longer exists. It is true that it has not been formally ended by a dismissal of the bill, but it is likewise true that neither party can take any adverse step in the cause, for the reason that no cause of action exists. The present motion is by the counsel for the wife, but it is made in her behalf, because all proceedings of this nature must be in favor of the wife, and all costs and counsel fees which are awarded A. J. David, of Elizabeth, for the motion. in the suit must be awarded to her, and only HOWELL, V. C. [1] This is a suit between husband and wife; she files her bill for maintenance under the statute. Before the suit had proceeded to hearing, a reconciliation was effected between the parties by the efforts of counsel, and, as was stated by counsel at the argument, all offenses were condoned and cohabitation between them was resumed. Counsel for the complainant now moves for a counsel fee to be paid by the husband. The motion is undefended, and the question is whether, under the circumstances, it can be allowed. It was claimed on the part of the complainant's counsel to be payable on the ground that it comes within the category of necessaries for which the husband is bound at common law. There may be cases which hold this, but the better opinion is the other way. she can proceed in her own name for costs and counsel fees or prosecute the husband for disobedience of an order in relation to the same. To permit a motion of this sort to be prosecuted on behalf of the wife against her husband, after they have been reconciled to each other and have resumed cohabitation and are living together in a state of amity, would be an anomaly. It would be continuing the litigation after the parties had put an end to it, and would have a tendency to break up the reconciliation and cause a resumption of the litigation. In Haddon v. Haddon, 18 Q. B. D. 788, 56 L. J. M. 69, the facts were that a husband had been summarily convicted of an aggravated assault upon his wife. The justices before whom he was convicted made an order under the matrimonial causes act that the wife be no longer bound to live with him, and that he should pay her one pound a week for her support. After a short separation the husband and wife became reconciled and lived together for a year, when they finally separated. It was held that the legal existence of the support order was put an end to by the subsequent reconciliation The Supreme Court of Connecticut, in Shelton v. Pendleton, 18 Conn. 423, held that the duty of providing necessaries for the wife is strictly marital and is imposed by the common law in reference only to a state of coverture and not a divorce. By that law a valid contract of marriage was and is in*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |