O'Keefe v. O'Keefe

96 N.J. Eq. 617 | N.J. | 1924

The controversy is purely one of equity pleadings, subject, especially, to the recent statutes relating to the court of chancery and rules of that court. P.L. 1915 p. 184; for the rules, see 100 Atl. Rep. 7.

The first point made on the appeal is that paragraph 2 of the answer was improperly stricken. It reads as follows: "Paragraph 2 is denied, except that defendant admits that the rents received from the eight bungalows in 1921 amounted to $3,320, and for 1922 to $3,410; and that complainant received the rents for 1923 amounting to $1,392.50."

Rule 65 in chancery reads, in part, as follows: "The answer must specifically admit, or deny, or explain, the material facts as stated in the bill of complaint, unless the defendant has no knowledge or information sufficient to form a belief, and so states."

We think the paragraph was evasive and properly struck out on that ground. The complaint specifically charged that he had received certain rents and appropriated them to his own use. The answer speaks of "rents received." Received by whom? If by defendant, did he use them in whole or part to pay legitimate expenses of the property? The general "denial" seems to leave the issues of fact somewhat in the air. A complainant making a specific charge is entitled to have it squarely met in the answer, and the court is entitled to a clear issue to try out. To that end it must, necessarily in its discretion, mould pleadings so as to clarify the issue. Inasmuch as the order appealed from reserved to the defendant an opportunty to answer over, no substanial right has been infringed. We see no error here to call for a reversal.

It is argued, under this point, that the bill fails to show that complainant is entitled to an accounting of the rents of the New York property, and this for the reason that it fails to aver any statute of New York on which such right is founded; and unless such statute be pleaded and proved, the common law is presumed to be in force. One answer to this is that the right under New York law is asserted, at least, inferentially, in paragraph 4 of the bill. No specific reference to a "statute" is needed if the pleading states the law of the other state to be thus and so. Moreover, by section 26 of the Evidence act (Comp.Stat. p. 2229), the court may take judicial notice of the reports of decisions in other states, as evidence of their common law and judicial construction of statutes. Applying this statute, we observe by the decision in Hiles v. Fisher, 144 N.Y. 306;39 N.E. Rep. 337, that the law as to entireties in that state is substanially identical with our own; in fact, that our decision in Buttlar v. Rosenblath, 42 N.J. Eq. 651, was adopted by the highest court of New York as an exponent of the rights of parties under their law and statutes. It has been followed in this state by O'Connell v. O'Connell, 93 N.J. Eq. 603, in which the right of the wife to an accounting of rents is specifically declared. This seems also to dispose of the second point argued in the brief of appellant.

We are now brought to the part of the counter-claim already abstracted and held to disclose no cause of action. This ruling we consider was correct. On the face of the counter-claim not a fact is stated that is inconsistent with the general rule that when a husband puts real estate in his wife's name or builds on her land, equity presumes that it was by way of settlement or gift. Hood v. Hood, 83 N.J. Eq. 695; Ringold v. Ringold (Chancery), 116 Atl. Rep. 690, and cases cited.

The order will be affirmed, with costs.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS — 15.

For reversal — None.