On motions by both sides.
[11 NJSuper Page 586] Six motions came before me in this cause. One was by the plaintiff, under an order to show cause allowed herein, that the defendant Doctor Greenberg be restrained from removing assets deposited with or under the control of two banking or savings institutions in Newark; another motion by the plaintiff that the temporary receiver appointed herein, to hold assets in this State belonging to Doctor Greenberg, should be continued; and a third motion by the plaintiff that a safe deposit box at the Fidelity Union Trust Co., in the name of Ruth Realty Co., should be sealed or its contents delivered to the said receiver. The defendant Doctor Greenberg countered by motions (a) to dismiss this action on the ground that the plaintiff had brought herself within the unclean hands doctrine by failing to reveal to the court at the time ad interim relief was obtained by her that substantially the same action was already pending between the same parties (husband and wife) in the Supreme Court of New York and that in that earlier action the plaintiff had already obtained an ad interim restraint enjoining the husband from transferring or disposing of assets "no matter where situate;" (b) to abate the within action because of the pendency of the
New York action; and (c) to vacate and discharge the writ of ne exeat issued in this cause against the husband. All motions were submitted on affidavits and on arguments, written and oral, furnished by the parties.
The motion to dismiss on the unclean hands doctrine has already been disposed of. It was not denied that when the complaint was filed herein, and on an ex parte application an ad interim restraint was imposed against the defendant, a temporary receiver appointed over his assets in this State, and a writ of ne exeat allowed under which his arrest was ordered, there was not revealed to the court the existence of the New York suit which had already been commenced and in which the defendant had already been served personally in New York. The proofs before me present the complaint in the New York action. In respect of substance the two actions are the same. It was argued before me that the existence of the earlier suit in another state and, particularly, the character of the restraint there already allowed were material facts which the plaintiff, as a suitor in this court, was obliged to reveal. It was emphasized that the omission so to do was not attributable to any ignorance on the part of the plaintiff, who is herself a lawyer in New York, though not engaged in practice. The attorney for the plaintiff in this State assumed the responsibility for the failure to disclose to this court the stated facts but insisted that the omission was not willful and, further, that the disclosure would not have altered the court's action, taken ex parte. I believed that the undisclosed facts were material but I was of the further opinion that their non-disclosure did not in the instant case constitute so serious an omission as to justify the denial to plaintiff of a hearing on the merits of her case. Accordingly, I denied the motion to dismiss. In some jurisdictions one seeking relief is required in his moving papers to state to the court that no like application was previously made to any other court, and, if made, what disposition thereof occurred. The purpose of such requirement is not unlike that of our own rule in matrimonial causes, where the petitioner must reveal all previous proceedings between the parties affecting the marital status. A previous
or a pending proceeding between the same parties and for the same or related cause is always material to a subsequent action between those parties, and certainly may be revealing of important attitudes or other facts. Our courts have time and time again indicated their expectation and requirement that suitors in a court of conscience must fully and candidly present the entire situation. In the case of Philip A. Singer & Bro. v. A. Hollander & Son , 104 N.J. Eq. 352, 145 A. 621 (Ch. 1929), Vice-Chancellor Backes said: "Suppression of facts material to the issue is neither ingenious nor ingenuous, and proper discipline would be to deny a hearing." It is to be clearly understood that whenever hereafter relief is sought in this court, particularly when the application is made ex parte and the relief asked is drastic, such as an ad interim restraint or the appointment of a temporary receiver or the issuance of an order for arrest, the applicant shall fully and explicitly reveal to the court all then pending actions between the parties in any way relating to or touching the subject of the controversy.
I next consider the motion to vacate and discharge the order of ne exeat. The defendant-husband's proofs are not controverted with respect to the following facts: He is a physician and was married to the plaintiff in February of 1941. The parties at first resided at Hillside, in this State. That residence was taken up so that Doctor Greenberg could look after the medical practice of his brother-in-law, who had joined our armed forces. The defendant practiced at Hillside from May, 1941, for about a year. His wife was not satisfied with residence at Hillside and wished to move to Brooklyn, where she had spent much of her life, and she wanted her husband to establish himself in Brooklyn as a practicing physician. He yielded to her desires and the couple moved from New Jersey in January of 1942, taking up their residence in Brooklyn, where they lived together without interruption until October 5, 1950. About four months after the parties moved to Brooklyn the doctor discontinued practicing at Hillside and at once opened, in May of 1942, a medical office in Brooklyn, where he has practiced continuously to the present time.
He has not for about nine years practiced anywhere in New Jersey. His practice is an extensive one and embraces considerable work in the field of obstetrics. He is required to hold himself available at all hours of the night for patients in delivery and other patients approaching such event. He admits that he has been financially successful, and if that success is to be measured by the wife's statements of his wealth, he has become a person of large and substantial means. Obviously his interests require that he continue to practice where he has over the years built up a large following and enjoys a lucrative practice. It is exceedingly unlikely that against self-interest he would wish to depart to another state to start from scratch and endeavor to build up an entirely new following.
The wife asserts in her affidavit verifying the complaint that he made the threat that when he would obtain the delivery of the Cadillac automobile which he has on order he will depart for California, to reside there permanently. Forgetful of this assertion she stated in a later affidavit that he became a resident of New Jersey because of his infatuation with a certain lady residing in New Jersey, his purpose in moving to New Jersey being not only to be near her but to reside in this State, where a divorce is obtainable on grounds not cognizable in the State of New York. She is evidently mindful of the grounds of desertion and cruelty, traces of which may be found in the husband's charge that she mistreated him and that on October 5, 1950, she changed the locks of their Brooklyn home, barred him therefrom, and even prevented him from removing therefrom his clothes and personal belongings. The charge of having locked out her husband is denied by her and there is no need for determining now that disputed fact. We are here concerned with the simple question of the propriety of the issuance of the writ of ne exeat. In her application for that writ, the wife stated that her husband was then, on December 11, 1950, living with his parents at Hillside, New Jersey. In her most recent affidavit, sworn to on January 8, 1951, she says: "I have charged that my husband, the defendant, Mortimer Greenberg herein, [11 NJSuper Page 590] was a resident of New Jersey when this suit was started." The within action was in fact started upon the filing of the complaint on December 11, 1950. The allegations which moved the court to allow the writ of ne exeat were those that he was a resident of this State and was about to depart therefrom to California. In support of those claims she offers proof which, in the form offered, is inadmissible because it is clearly founded on hearsay. Assuming that such proof were free of that objection, it amounts to the following: He was on or about September 12, 1950, one of the incorporators of a company in New Jersey known as Ruth Realty Co. It is not denied that he was named in the certificate of incorporation as the registered agent and the address of the company's office was given as that of the parents' home in Hillside, New Jersey, and that one or more safety boxes were opened in this State in the name of that company, with the defendant designated as president and access furnished to him. The attorney who prepared the charter explains in his affidavit that he was engaged to incorporate the company by a Mrs. Orris (another of the three incorporators and the sister of the defendant), that in designating the registered agent he, the attorney, had committed an error, and that he had known for some time that the defendant lived in Brooklyn and practiced medicine there. The attorney explains in his affidavit that he had intended to designate Jacob Greenberg (the third incorporator and the defendant's father) as the registered agent, but through error and because of similarity of surnames the name Mortimer Greenberg was inserted instead of that of the father, Jacob Greenberg. He further says that it was he who chose the name of the registered agent. The other two incorporators say that when they signed the certificate of incorporation they did not notice who had been designated as the registered agent. From the fact of such designation and from the further fact that on the application for a safety box the defendant's address was stated as that of his parents, the plaintiff concludes that the defendant changed his residence from Brooklyn to that of Hillside, New Jersey. This conclusion cannot prevail against the very persuasive circumstances that [11 NJSuper Page 591] the defendant has not only lived continuously in Brooklyn for almost nine years but that his professional interests require the continuance of such residence. It is the defendant himself who in his answering affidavit volunteers the information that when he was locked out from his home in Brooklyn he came to Hillside two or three nights a week to sleep at his parents' home, and that on all other nights he slept in his Brooklyn office so as to be available for the night calls in his obstetrical work. It is not denied that he did this only while looking around in Brooklyn and Manhattan for suitable accommodations for himself, which he found early in December in New York City, where he has lived ever since. It is not denied that the last night he slept at his parents' home was Saturday, December 2, 1950, and that he has not been in New Jersey since the morning of Sunday, December 3, 1950. As to his state of mind in coming to New Jersey two or three nights a week during the alleged period of lockout, he asserts, and the court believes him, that at no time during that period did he intend to change his residence from Brooklyn to Hillside, New Jersey. I also believe the attorney, Mr. Castelbaum, that his designation of the defendant as the registered agent and that of the residence of the defendant's father as the registered office resulted from an error on the part of counsel and that what was intended was to designate the father and the father's home respectively, as agent and office. Even if this were not so, the mere designation of the defendant as registered agent would not accomplish the change of residence which the plaintiff alleged and upon which she obtained the order for the defendant's arrest. The defendant's own use of the Hillside address in connection with the renting of a box does not by itself make out the plaintiff's claim that her husband became a resident of New Jersey. All the circumstances indicate plainly that his coming into the State between October 5, 1950, and December 2, 1950, to sleep two or three nights a week in his parents' home, was a temporary make-shift arrangement to tide him over until he could find suitable residence in New York. The fact that he slept in his Brooklyn office four or five nights a week more than just
outweighs the fact that other nights he slept at Hillside. A very important ...