106 N.J. Eq. 344 | N.J. Ct. of Ch. | 1930
This matter is before the court on defendant's motion for an order to discharge the writ of ne exeat issued herein, to cancel a bond given by the defendant thereunder, and to strike the bill of complaint for want of equity. And upon complainant's motion for an order to require the defendant to furnishsufficient bail in the sum of $8,500, that he will not go or attempt to go into parts without the state of New Jersey without leave of the court, the complainant assigning as ground therefor that the bail heretofore given by the defendant *346
is not sufficient, and having filed a notice of exception thereto. I am not aware of any authority for the filing of a notice of exception to bail given under a writ of ne exeat, nor has any authority therefor been cited by counsel for the complainant. Counsel may have in mind that practice rules applicable to bail given in law proceedings under capias adrespondendum or capias ad satisfaciendum should be regarded as applicable to bail given under a writ of ne exeat. I do not deem it expedient to determine such practice question in the matter sub judice, for the reason that I have concluded that the writ of ne exeat in the instant case should not have been issued, and consequently that the writ should be discharged and the bail given thereunder canceled. The defendant is a son-in-law of the complainant. Owing to marital differences between the defendant and his wife the defendant in the year 1929 saw fit to remove from Brooklyn, New York, to Weehawken, New Jersey. His wife did not accompany him. He established his residence at 989 Boulevard East, Weehawken, New Jersey. That his residence so established was intended to be permanent is manifested not only by his affidavit hereinafter referred to, but also by the fact that on July 20th, 1929, five months before the filing of the bill herein, he entered into a lease for dwelling apartments at said address for a period of three years from September 1st, 1929, wherein he has since resided. The defendant is a physician. He avers that he removed to Weehawken with the purpose and intention to there engage in the practice of medicine. His sincerity in such respect is not only manifested by his affidavit and the lease above mentioned, but also by the fact that in the same month — July, 1929 — he made formal application to the New Jersey state board of medical examiners for a license to practice as a physician within this state, and a license was issued to him by said board thereunder. He has since followed the practice of his profession in Weehawken, New Jersey. He has filed an affidavit herein wherein he says: "I now reside in the town of Weehawken, in the county of Hudson and State of New Jersey. I did not come to the State of New Jersey *347
for the purpose of evading process of any kind in the State of New York, or for the purpose of avoiding the payment of alimonypendente lite. I came here because it seemed to me the most favorable place where I could practice my profession, in view of the fact that my profession was ruined in Brooklyn owing to the unpleasant notoriety caused by the matrimonial proceedings of my wife against me in the courts of New York. My father-in-law stated to me that he would impoverish me and drive me out of New York and ruin my medical practice in New York, and it would seem as if he succeeded in doing so for, at any rate, I know that my practice was ruined, from whatever cause, and I was compelled to find a field elsewhere to practice my profession and earn my living." Ira Wollison, an attorney and counselor-at-law of New York, by affidavit filed herein says: "I heard Joseph Frieldand, the complainant in this cause, declare that he would drive the defendant out of New York and ruin his professional practice unless the defendant acceded to the complainant's financial demands in connection with the proposed settlement between the defendant and the complainant and the complainant's daughter of all their outstanding and alleged claims against the defendant. The complainant, Joseph Friedland, made the said declaration to me in my office at 150 Broadway, borough of Manhattan, city of New York, sometime about January, 1928." I refer to said affidavits for the purpose of indicating that the defendant's statement that since July, 1929, he has been a bona fide
resident of Weehawken, New Jersey, and his reason for removing thereto, coupled with the fact that he had entered into a lease for dwelling purposes in said municipality, and the fact that he applied for and obtained a license to practice medicine, as hereinabove mentioned, is not only tenable but significant of thebona fides of his purpose and intention in becoming a resident of this state. Much is contained in the affidavits filed herein which is non-evidential and subject to the criticism applied by Chancellor Walker to affidavits filed in Etz v. Weinmann,
I will advise an order discharging the writ of ne exeat, requiring the cancellation of the bond given thereunder by the defendant and his surety, requiring the clerk of the court to deliver said bond to the defendant for cancellation, denying the complainant's application to require the defendant to give other bail or security and providing for a dismissal of the bill of complaint for want of equity.