Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant appeals from a summary judgment entered in the Law Division in favor of plaintiffs in their action for possession of land, and dismissing her counterclaim.
Plaintiffs by their complaint sought possession of the ground floor apartment occupied by defendant at 318 Park Avenue, Hoboken, N.J., which premises had been conveyed to them by Pauline Gatto and Peter, her husband, on June 24, 1955. Defendant filed a verified answer and counterclaim. The answer contains an "affirmative legal and equitable defense" which discloses the following factual representations:
Carmine Pascale and Catherine, his wife, were owners of 318-320 Park Avenue. Catherine died July 10, 1934. In October 1936 Carmine Pascale and defendant "married themselves by their own marriage agreement" and thereafter lived at 318 Park Avenue and cohabited as man and wife, "but almost secretly" because Pascale did not want his relatives to know of the marriage. Defendant refers to Pascale as her "undisclosed husband." On May 2, 1955 Pascale conveyed 318-320 Park Avenue to his niece Pauline Gatto and her husband Peter, the recorded deed bearing $4.40 in revenue stamps, thereby indicating a consideration of $4,000. By contract dated May 18, 1955 the Gattos agreed to sell the premises to Nicolo Salvemini for $4,000, and a deed into Salvemini and his wife was executed June 24 following.
Defendant alleges -- although she makes no further point of it -- that at the time of the conveyance to the Gattos, Pascale was mentally incompetent, and on June 14, 1955 was confined to a mental hospital on the complaint of his brother. She claims that although she was in physical possession of the premises, neither the Gattos nor plaintiffs, at the time
of their respective deeds, ever made inquiry to ascertain from her what her right, title or interest in the premises might be, although they knew that she was Pascale's wife.
The right, title or interest to which defendant refers is based on an agreement executed by Pascale and defendant on January 5, 1955, and a will executed by Pascale January 6, copies of both being attached to and made part of the answer. The agreement states that Dorothy Giblin agrees to act as housekeeper for Pascale during the term of his natural life and to keep a clean and happy home for him. Pascale, in turn, agreed that defendant be his housekeeper for life; that he would execute a will leaving her his entire estate, provided she was still his housekeeper at the date of his death; and that he would purchase a two- or three-family house in which he and defendant would make their home until his death, defendant to have a half-interest therein if she continued as his housekeeper. Pascale executed a will the next day whereby, after directing payment of all his just debts and funeral expenses, he left the rest, residue and remainder of his estate to "my beloved housekeeper, Dorothy Giblin," and designated her, by similar description, as executrix without bond.
Also attached to the answer is a real estate agreement dated January 28, 1955, undoubtedly undertaken pursuant to the agreement of January 5, whereby Carmine Pascale and Dorothy Giblin agreed to purchase property designated as 845 Garden Street, Hoboken, for $10,300. The sale was never consummated because of Pascale's commitment to the mental hospital.
On the basis of this factual array, defendant by her answer claimed that any right, title and interest which plaintiffs and their predecessors in title might have is subject to hers, and that she has an absolute right to the control and possession of 318 Park Avenue.
Defendant also counterclaimed for an accounting of rents collected by plaintiffs since June 1, 1955, judgment for the total rents so collected, and judgment for complete and exclusive right of possession of the premises. The counterclaim
reveals that as of the date of its filing, defendant was 40 years old and "her alleged husband," Carmine Pascale, 72, the marriage having ...