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Podkowicz v. Slowineski

Decided: March 11, 1957.

MARY PODKOWICZ, ALSO KNOWN AS MARY POTKOWICZ, PLAINTIFF-APPELLANT,
v.
JOHN SLOWINESKI AND VERONICA SLOWINESKI, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[44 NJSuper Page 151] This is an appeal from a Chancery Division judgment dismissing plaintiff's action after a full

hearing. The complaint charged defendants with breach of their written agreement with plaintiff whereby she agreed to advance, and did advance, the sum of $4,000 to defendants to be used for the purchase of a dwelling on South Clinton Street, East Orange, in return for which they were to furnish her with a home and private room in said premises, and to support and care for her for the rest of her natural life. Plaintiff demanded judgment impressing a lien upon the premises, or in the alternative, a judgment of $4,000 or a judgment requiring defendants to convey the premises to her. The answer denied breach of the contract and, by way of separate defense, alleged that defendants have at all times been ready, willing and able to comply with the agreement, had tendered compliance, but plaintiff refused and still refuses to accept the benefits due her under the agreement.

The pretrial order projected an entirely different theory of action, namely, that defendants induced plaintiff, an aged lady, to enter into the agreement and that in doing so she pauperized herself, and this without having the benefit of independent, competent and disinterested advice. The case was tried and decided on that basis.

Plaintiff was about 88 years old at the time of the agreement. The trial judge described her at the time of the trial in April 1956 as "in a good state of health for one of her years. Mentally she appears to be strong-willed and normally perceptive." Her testimony reveals a clear mind and a determined nature, and also that she had a clear understanding of the transaction she now attacks.

On December 28, 1954, the date of the agreement, plaintiff had $5,500 or more in cash. For some months preceding she had visited defendants at their home on St. Francis Street, Newark, eating an occasional meal with them. Defendant John Slowineski is her second cousin. The St. Francis Street place had only four rooms in which defendants and their five children lived. On one occasion plaintiff suggested that for the monthly rent they were paying defendants could own a house. Told by them that they did

not have funds to make a down payment, she offered to put up the money. Although plaintiff denies that the house was purchased at her suggestion, the trial court's finding that it was has clear support in the record.

Plaintiff and defendants then proceeded to look at various houses; she liked the South Clinton Street property and defendants decided to buy it. The parties then went to the office of defendants' attorney with a view to having him act for them in the title closing. They told him of the agreement they had reached, and he thereupon suggested that a contract be prepared and executed. This was done; the agreement was read to plaintiff in English and explained to her in Polish and, as plaintiff herself testifies, she was satisfied with the arrangement.

The agreement acknowledges receipt of $1,000 from plaintiff, representing the deposit on the purchase of the property. It recites that plaintiff agrees to give defendants an additional $3,000 to be used as a down payment at the time of taking title. Then follows defendants' express agreement to provide a home, support and care for plaintiff during her life, and to pay all funeral expenses upon her death.

Plaintiff moved into the Slowineski home on St. Francis Street about January 1, 1955. They charged her no board or rent, and she admits that she was treated well and all was peaceful. On April 1, 1955 she and the Slowineskis moved into the new home on South Clinton Street. She quit the place three days later, returning only to get her belongings on April 11. Plaintiff testified that the cause for her departure was that defendants had learned she still had money left and demanded $1,000 of her, as well as $10 a week board. She claims they abused her; that Mrs. Slowineski threatened she would take her down to the cellar and cut her throat (this was later changed to a threat that defendant would cut her own throat); that defendants' son threatened to throw her down the stairs and break her bones; that Mrs. Slowineski and her son called plaintiff a drunkard and other names, and when she refused to give them $1,000

they chased her out of the house. None of plaintiff's testimony was corroborated; she was ...


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