For the plaintiff, Richard S. Wilson.
For the defendant Marie Barber Rizzo, Grover C. Richman.
Before Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This case comes up on the return of a rule to show cause why the judgment entered by default on October 19th, 1928, at the suit of Hanover Trust Company against Nicholas Rizzo and Marie Barber Rizzo, in the New Jersey Supreme Court (Mercer county) for $15,313.76, besides costs,
should not be opened as against Marie Barber Rizzo, the wife of Nicholas Rizzo, and that she be allowed to enter her appearance and defend the suit on the merits. The defendant bases her application on the ground of duress, merit and surprise.
It is the settled law of our state that before a judgment by default regularly entered will be opened for the purpose of interposing a defense the one seeking to invoke the aid of the court must show surprise and merit. Schwenk v. DeMaio, 79 N.J.L. 189; Lavino v. National Surety Co., 104 Id. 475.
The judgment in this suit was based on two notes of the defendants. One for $6,000 dated January 7th, 1927, and one for $8,000, dated March 16th, 1927. The defendants tell an amazing, a most unusual story. The wife says that she had no business experience. It appears that she did have six years education at the Catholic School, at Chestnut Hill, Philadelphia, and one year at Notre Dame, at Philadelphia. That she lived continuously with her husband under one roof, submitting all this time to threats of bodily harm, violence and abuse. That between the period of the latter part of August, 1925, and March 15th, 1927, she signed some ninety-four notes, including the two above referred to, in blank, at the command of her husband. That she signed almost anything else laid before her by her husband in order to keep her peace. That she at no time complained to anyone because of his alleged ill treatment, nor did she at any time tell anyone connected with the Hanover Trust Company that she signed the notes under duress. The husband, an admitted bootlegger, shamelessly and brazenly corroborates the contention of his wife. In addition thereto he claims that some officials of the bank, particularly one Dugan, who is now dead, were implicated with him. To some extent one Vito Temmerello, a friend of the defendants, corroborates the ill treatment of the husband. On the other hand the testimony of the bank authorities is that they knew nothing of the alleged duress on the part of the husband.
Under these circumstances the law applicable is well established:
"Duress, to avoid contract, must be the act of the other party himself or his agent, or must be imposed with his knowledge, and taken advantage of by him for the purpose of obtaining the agreement. Duress by a third person will not avoid a contract made ...