(89 N. J. Eq. 589) SLACK v. SLACK. (Court of Chancery of New Jersey. July 25, 1917.) 1. DIVORCE 109-EVIDENCE OF WIFE; REBUTTING PRESUMPTION OF GUILT FROM COMPROMISING CIRCUMSTANCES. In a husband's suit for divorce for his wife's adultery, to overcome or neutralize the presumption of guilt arising from having been found in a compromising situation, the wife's explanations must be probable, must have the ring of truth, and must be supported, if not by the testimony of others, at least by surrounding circumstances. 2. DIVORCE 115, 129(7)—ADULTERY; TECTIVE'S TESTIMONY. DE Detective's testimony is competent in a divorce suit for divorce for adultery, but is scrutinized carefully before given credence, and will not be relied upon unless corroborated. 3. DIVORCE 129(16) — EVIDENCE SHOWING WIFE'S ADULTERY. Evidence held to establish adultery by defendant wife, despite the denials of herself and the corespondent. Petition for divorce by Leroi C. Slack against Grace E. Slack. Decree for petitioner. See, also, 89 N. J. Eq. 589, 105 Atl. 894. Scott Scammell and Charles De F. Besore, both of Trenton, for petitioner. ed in upon them, and found them both on the bed, the baby, a child of the Slacks, between them. These circumstances raise a very strong presumption of guilt. And why do the inferences raise this wrong presumption? Here was a robust, healthy, full-blooded virile young fellow, with all the passions of youth and all of its weaknesses, and a mature wohusband for a long spell, occupying the same man of about his own age, apart from her bedroom. What naturally took place, are we to suppose? The presumption is, of course, rebuttable, but it requires evidence of a most plausible and persuasive kind to satisfy one that the crime was not committed, and to this end the defense bent all effort; that is, to show that the relations of this man and woman in that room were entirely innocent and explainable. In fact, when the defendant was first charged with the offense, she declared the appearances capable of explanation, and all she desired was an opportunity to explain the matter to her husband. Some women can explain anything to some husbands, I have no doubt, but when they come into a court we must view their unconventionalities according to established standards, to which appeals and considerations in the domestic forum bear no relation. This man Mitchell, about 27 years old, had been on friendly terms with Mrs. Slack's mother and Mrs. Slack before she was mar Martin P. Devlin and A. S. Brennan, of ried, and afterwards with Mrs. Slack, and, Trenton, for defendant. BACKES, V. C. I will decide the case without further consideration. The petitioner charges his wife with having committed adultery on the morning of December 25, 1916, at her residence on Stuyvesant avenue, in Trenton. probably, Mr. Slack, at their home. He had a key to their house. He was a sort of a "cock biddy," minding the baby, attending to fires, and washing the dishes; some of the other boarders helped, too. He had free access to the house at all times, day and night. There is no evidence to show that before December 25, 1916, there was any unThese facts are undisputed in the case. The corespondent, Mitchell, was invited to due familiarity or intimacy which would the house to stay overnight, on the after- lead one to seriously suspect anything noon or evening of December 24th. He went wrong between the two up to that time. there about 7:30 or 8 o'clock, and remained Whether there was in fact I surely do not all night. Thompson, a boarder, but in fact know; but it is not shown in the record that a detective, on that night, was the only other there was between them any such acts of adult occupant of the house up until about familiarity, or other conduct, as would indi3 o'clock in the morning. He then brought cate a desire on the part of either to have to the house the petitioner's father and sexual intercourse. But on the night, or rathBowne, also a detective. Shortly afterwards, er in the morning, in question they were in response to a call by Thompson, Mrs. certainly found in a most compromising situSlack came from her room, and went down- ation, and yet this woman said, in response stairs with him to look for the source of a to questions of mine on the witness stand, supposed fire; Thompson having stated to that she was not conscious of violating the her when he called her that her house was proprieties; that she did not realize that to on fire. From the time that she got back to have this man in her bedroom from 3 o'clock her room-a little after 3 o'clock—until half in the morning until 7 was, under the cirpast 7 in the morning, the defendant and the cumstances, an improper thing, or would subcorespondent were in that room together; ject her to scandal if found out. She made and at half past 7 in the morning, after that statement with apparent candor. She Mrs. Slack returned from downstairs, after was very naive, and sought to impress me a telephone call, Bowne, the detective, walk- that she did not see anything wrong or im (108 A.) proper, or anything that anybody could find telephone bell rang she went out and returned, fault with. That taxed my credulity con- and it was then that Bowne, the detective, siderably. walked in on them. She further says that when she left to attend to the telephone, Mitchell reversed his position, lying with his head towards the headboard, reclining on the bed, playing with the baby in the crib to the left; that she told Mitchell to keep the baby in his crib, but that the baby climbed over Mitchell and went downstairs after her; that when they returned she told the baby to tell all about what Santa had brought; and it was then that Bowne walked in. [1] To overcome or to neutralize the presumption of guilt, her explanations must be probable; they must have the ring of truth; they must be supported. I do not say supported by the testimony of others, but by the surrounding circumstances, at least, to lend probability. It is true, as her counsel argued, that we cannot conjecture, we cannot speculate, as to crimes of this kind having been committed, and that we must have proof, clear and convincing, but when we have proof in the form of admitted circumstances of a decidedly incriminating nature, unsatisfactorily explained, we are not driven to either in arriving at a verdict. Now, after 8 or half past 8 in the evening, so her story goes, and on towards 10 or 11 o'clock, they (she and Mitchell) began trimming the Christmas tree, and, having finished about half past 1 in the morning, Mrs. Slack says she retired to her room to finish a piece of embroidery, a present she intended for her mother's Christmas. When the telephone bell rang about half past 7 in the morning, the piece of embroidery had not been finished. She had gone up to work on it, so she says, and if, in fact, she did throughout the night, she necessarily must have worked with the light burning, which is all important to her testimony, as we shall see later. She was afraid of Thompson, the detective, according to her story, and on the day before had solicited her mother and two or three of her friends to come to her house and stay overnight, expressing to them her fears of Thompson. When the fire alarm came at 3 in the morning she went downstairs with Thompson. She was not afraid. It may be that in the excitement she forgot her fear; that one fear drove away the other. But why did she not call Mitchell, who was there to guard? After searching downstairs she returned, Thompson coming to the door with her, or near to it; and when she got in the room, she says she found Mitchell there, and that she asked Mitchell to stay to protect her against Thompson. The place to protect her against Thompson would have been, it seems to me, in the adjoining room of the boarder Custer (who was then away), wide awake and watching. This was the more suitable place, and the proper place, and if her conduct had been innocent, it is most likely that she would have said to Mitchell: "I wish you would stay there and awake; I am afraid." But no, she told him to stay with her in her bedroom. She, so she says, went on with her work, with Mitchell lying on the bed with his head on the footboard, or towards it, reading; that after a while Mitchell fell asleep, and that she pulled the covers over him; that in the morning when the 1 It does not strike me at all as the natural thing a pure, innocent, and unsophisticated woman would do. As free and intimate as people are in their households-as these people were they do not have strangers of the opposite sex stay with them in their bedroom, and with the doors locked, merely for protection. But that is not all. Her story is flatly contradicted, and in a vital part, by Mitchell, the corespondent; and his testimony in turn is impeached by most reliable witnesses. His explanation is absolutely shattered, and in his fabrication of the affair he destroyed whatever merit there otherwise might have been in the story told by Mrs. Slack. Mitchell's version is as disingenuous as that of Mrs. Slack. He says that after Mrs. Slack had gone upstairs after trimming the tree, and as he was in the house to protect her from Thompson, he took off his coat and vest, collar and necktie, and left them down on the hall hatrack, and went up into Custer's room. Mrs. Slack occupied the front room; Custer's room was next, but not communicating. Now, at half past 1 in the morning, after trimming the Christmas tree (all know, who have children, what a tiresome and wearing job that is), he put on Custer's bathrobe and slippers and lay down on the lounge and smoked a cigarette before going to bed. I think he said he didn't feel sleepy. Well, it doesn't appear that Custer had any cigarettes in his room, and here is the first break. He was asked were he usually carried his cigarettes, and replied, indicating, in his vest pocket. Now, then, if on the night in question he left his vest and coat downstairs which I do not believe, how did he happen to have a cigarette upstairs? He followed this slip up quickly enough by saying that he had this one in his pants pocket. I know it is not the practice to carry cigars in pants pockets, and I doubt that cigarette smokers carry cigarettes there. And then, he says he fell asleep. Mind, he was there especially to protect this woman. He was awakened by a noise on the stairs, and heard Mrs. Slack in a fairly loud tone expostulating with Thompson for fetching her downstairs. What would a man ordinarily have done under the circumstances? Would he not, to having been done. It seems to me that her conduct on that morning is susceptible of an interpretation differing very much from that which she simulated, or that which counsel attempted to ascribe to it. In her letter of January 5th she wrote her husband of the delightful Christmas she had spent, in the hope, perhaps, that he had not heard of her escapade. What duplicity! protect his charge, have rushed downstairs stand she was not conscious of any wrong and demanded of this stranger his business with this woman at that early hour? But Mitchell, so he says, stepped instead into her room and hid in the closet. He says the room was in darkness. Now, if that was so, Mrs. Slack had not been embroidering, for it does not appear that she turned out the light when the alarm of fire came and relighted it after the commotion. In that respect he contradicts the crucial part of her story. If she had not been embroidering, as she said she had been, and, of course, she could not have been in the dark, then her recital must go down with that falsehood. In that one and very material matter their testimony is in hopeless conflict. This could hardly be due to a misconception of things, or forgetfulness on the part of Mrs. Slack or Mitchell. Mitchell certainly knew whether the light was on or off; Mrs. Slack must have known. Now, one or the other has told what was not the truth. I am inclined to think that Mitchell and the defendant were in her bedroom, with the light out, and when the fire alarm came he hid in the closet; that the defendant knew it, and, consequently was not startled upon her return when Mitchell spoke to her in the dark. Furthermore, Mr. Slack, Sr., left the house shortly after, and he says he saw no light in his daughter-inlaw's room. [2] There is a dispute between Mitchell and Mrs. Slack, on the one side, and Bowne, the detective, on the other, as to how the two were dressed in the morning when Bowne entered the bedroom. Bowne's story is that they were both in the bed under the covers, Mrs. Slack in her nightgown and Mitchell with nothing on but an undershirt; that under orders Mitchell got up and dressed, and was taken under arrest to Mr. Cadwalader Slack's house nearby. Mitchell says he was fully dressed, with the exception of the articles he left down on the hallrack, having in their place the bathrobe and slippers of Custer. The defendant says she was fully dressed. Detective's testimony is competent, but it is scrutinized carefully before given credence. While it is competent, and may be admitted, we do not rely upon it unless it is corroborated, and the reason for that is obvious. There are some honest detectives, but very few, and the few must suffer for the misconduct of the many. But, in the main, in this case, the detective is corroborated, and I have no reason whatever to doubt him. Now, what was the attitude of the pair when they were discovered? Mrs. Slack apparently took the situation very coolly. She was not greatly embarrassed. Bowne asked Mitchell if she was his wife, and Mitchell said, "No." She seemed not unduly excited by that. She telephoned her mother about Now, let us look at Mitchell's story of what occurred later on, and what he said to Detective Bowne on their way to the home of Mr. Slack, Sr., and what he said there in the presence of Mr. Slack, Sr., Bowne, and Miss Slack, by way of admitting his guilt. It is not evidence, of course, to support the charge, but is evidence in the case going to discredit the defendant's witness, because on Mitchell the defendant depends to support her story; on him she relies to brush away the presumption of guilt that prevails against her from admitted circumstances. Upon Mitchell the defendant rests to show what actually occurred; that the circumstances do not reflect the true situation, and that the appearance of things mistakenly point to guilt. I am only considering Mitchell's testimony in the way of credibility. On his way to the senior Slack's house he said-perhaps I do not restate his exact words-"What is the use of putting up a fight?" or "What's the use when you are caught?" And at Slack's home he said that that was the first time he had stayed in bed with Mrs. Slack all night. An effort was made to show that the witnesses might be mistaken, and that what in fact Mitchell said was that that was the first time he stayed in the Slack house all night. Now, it is not likely that he would say to them that it was the first time he stayed in the house all night, because his sleeping there was a common thing, and he knew that Slack knew he had stayed there many times all night. Miss Slack, an estimable young lady of 19 or 20 says positively she overheard Mitchell say that this was the first time he had stayed in bed with the defendant all night. She was at the head of the stairs and out of sight when the statement was made. Bowne says the same thing, and so does Mr. Slack, Sr.— they cannot be wrong. I believe he said it, and it stands out boldly against his story told here under oath—his explanation of his presence in the room with the defendant, and the reason for his being there. The testimony of the defendant and corespondent was fabricated for the purpose of this case; it is improbable and unbelievable. [3] The crime is established, and I will advise a decree of divorce. The infant son, 2 or 3 years of age, will be awarded to the mother, with privileges to the father, who (108 A.) MAYOR AND COUNCIL OF CITY OF BAYONNE v. EAST JERSEY WATER CO. (No. 45–464.) (Court of Chancery of New Jersey. Aug. 30, 1919.) 1. EQUITY 39(1)—JURISDICTION; RELIEF OF DEFENDANT. In suit by a city to enjoin defendant from ceasing to supply water and for declaration of the rights of the city and defendant under several contracts, where defendant also prayed that the rights and obligations of the parties might be ascertained, Chancery Act 1915, § 7, is applicable, and the contractual rights of the parties under the contracts will be determined. 2. WATERS AND WATER COURSES 200(1) PUBLIC WATERWORKS; CONTRACT FOR SUPPLY. Under ordinances and contracts relating to the supplying of a municipality and its inhabitants with water, held that the defendant water company was obligated to supply the complainant municipality with water up to June 21, 1929. 3. WATERS AND WATER COURSES 200(2)PUBLIC WATERWORKS; CONTRACT FOR SUP PLY. The rights of distributing water company which obtained its water supply from defendant held assignable to the municipality, so that where the water company conveyed all of its property and assigned its contracts to the municipality, such municipality was entitled to an injunction restraining defendant from ceasing to supply water, the price to be received by defendant having already been fixed by contracts between the distributing company and the municipality. 4. WATERS AND WATER COURSES 200(1)PUBLIC WATERWORKS; ASSIGNMENT OF RIGHTS. Where a contract between defendant and a distributing water company, which declared that defendant should receive a percentage of the amount received by the distributing company, provided for renewals at 25-year periods ad infinitum, held, where the distributing company conveyed all of its property and assigned its contracts to municipality, the municipality was not entitled to enforce the renewal provisions, because in such case there would be no protection to defendant against lowering the charges for water, it being natural, in the case of the distributing company, that it would obtain the best prices possible. pality, the municipality was entitled to the benefit of the renewal provisions in the contract as to outlying territory, for in that case the municipality would naturally protect the rights of defendant by fixing reasonable charges. Bill by the Mayor and Council of the City of Bayonne against the East Jersey Water Company. Decree for complainant. James Benny, of Bayonne, and Gilbert Collins and Lindley M. Garrison, both of Jersey City, for complainant. Humphreys & Sumner, of Paterson, for defendant. LANE, Advisory Master. The suit is for an injunction restraining defendant from ceasing to supply water to Bayonne, and for a declaration of the rights of Bayonne and defendant under certain contracts. The case is submitted on bill and answer. Prior to about September 6, 1918, Bayonne had been receiving its water supply from the New York & New Jersey Water Company under contracts. The New York & New Jersey Water Company obtained its water from the East Jersey Water Company under contracts. The parties hereafter will be denominated "City of Bayonne" as "Bayonne," "New York & New Jersey Water Company" as the "Water Company," and "East Jersey Water Company" as "East Jersey." On or about September 6, 1918, Bayonne purchased from the Water Company its plant and took an assignment of all of its contracts with East Jersey. On September 10th East Jersey notified Bayonne that at the expiration of 15 days it would no longer supply Bayonne, insisting that the assignment of the Water Company's rights to Bayonne relieved East Jersey of any further obligation. Thereupon this bill was filed. There are three questions for determination, as stated by defendant in its brief: (1) Did the purchase by the city automatically terminate the obligations of East Jersey arising out of its contract with the Water Company to supply Bayonne with water? (2) If the obligation of East Jersey to supply Bayonne with water was not ended by the purchase, will that obligation terminate on September 6, 1919? (3) If the obligation of East Jersey was neither terminated by the purchase nor will terminate on September 6, 1919, but will continue until June 21, 1929, 5. WATERS AND WATER COURSES 200(1) or October 6, 1929 (a subsidiary question), PUBLIC WATERWORKS; ASSIGNMENT OF RIGHTS. is East Jersey under any obligation arising out of its contract to supply Bayonne with Where a contract between defendant which water after June 21, 1929? This third quessupplied a distributing company with water for tion is subdivisible: (1)) Is East Jersey uncity contemplated the supplying of water for der any obligation to furnish Bayonne with other territory, defendant to receive a percentage of the amount received by the distributing water after June 21, 1929, for municipal purcompany as water charges, held that, where the poses? (2) Is it under any obligation to furdistributing company conveyed all of its prop-nish Bayonne with water after that date for erty and assigned its contracts to the munici- resale to outside consumers? For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] The bill is not filed solely for the pur- of this modification the Water Company was pose of compelling East Jersey now to re- given the right to deliver water to consumers frain from cutting off the supply of water. in Hudson county outside of Bayonne. It It prays that the rights of Bayonne and East bound itself to take all water required for Jersey should be adjudged and determined, such consumers from East Jersey, and East and that East Jersey should be compelled | Jersey bound itself to supply to the Water specifically to perform and fulfill its con- Company all the water that that company tracts and agreements made with the Water Company to which Bayonne has succeeded by assignment. In the answer defendant unites with complainant in submitting to the court its rights and obligations and those of complainant in the premises, to the end that the same may be adjudged and determined by the decree of the court. Both sides, therefore, by their pleadings pray for a determination of their contractual rights which grow out of written contracts. The case is very clearly, I think, within the provisions of section 7 of the Chancery Act of 1915 (P. L. 1915, p. 184), and the reasoning of In re Ungaro, 88 N. J. Eq. 25, 102 Atl. 244, and Renwick v. Hay, 106 Atl. 547. I will consider all of the questions mooted. [2] On September 6, 1894, Bayonne and Washington and Beall entered into a contract under the terms of which Washington and Beall agreed to furnish Bayonne an ample supply of pure and wholesome water equal to all of the requirements of Bayonne, at a certain price, for a period of 25 years. This contract contained no provision for renewal. Washington and Beall assigned their rights to the Water Company, and that Company on July 12, 1895, made a contract with East Jersey, under the terms of which East Jersey agreed to furnish to the Water Company an ample supply of pure and wholesome water in such quantity as would fulfill the conditions of the contract between Bayonne and Washington and Beall assigned to the Water Company, and "all the further requirements of the Water Company as therein provided." The Water Company agreed to take from East Jersey all the water required for fulfilling its contract with Bayonne, and for fulfilling any contracts which might thereafter be acquired for supplying water for consumption and use on Staten Island, in the state of New York, but not elsewhere. The compensation which was to be paid East Jersey by the Water Company was 35 per cent. of the entire gross receipts arising from the sale of the water. It was provided that the contract should continue for a period of 24 years and 2 months, with the continuing option to the Water Company and its assigns of renewing it upon like terms and conditions as therein provided for successive periods of 25 years each, forever, upon giving one year's written notice of such intention to renew to East Jersey, its successors or assigns. On May 29, 1902, an agreement was made between East Jersey and the Water Company providing for a modification of should require, to be paid for at the rates mentioned in the contract. The effect of this modification was to give to the Water Company the right to receive from East Jersey all water required for its consumers in Hudson county outside the limits of Bayonne, and undoubtedly gave it a right to successive renewals for periods of 25 years ad infinitum. Whether the argument of counsel for the defendant that this clause with respect to renewal did not cover the contract the Water Company had with Bayonne, which terminated in 25 years, and had in itself no provision for renewal, is sound or not, I find it unnecessary to determine, because by subsequent arrangements East Jersey bound itself to furnish all of the water the Water Company required to fulfill whatever contracts the Water Company had with Bayonne in existence at the time Bayonne took over the Water Company's plant, and this is sufficient in the view I have taken of the case. By a further agreement between the Water Company and East Jersey made July 1, 1903, the Water Company again bound itself to take all of its supply of water required for its then present and future uses and purposes in Hudson county, N. J., or in Staten Island, N. Y., from East Jersey, and at the price and under the terms of the contracts theretofore existing between East Jersey and the Water Company. On June 21, 1904, Bayonne passed an ordinance which was accepted by the Water Company on June 28, 1904. The ordinance recited the existence of the contract of September 6, 1894—that is, the Washington and Beall contract-the necessity for a further water supply, the of fer of the Water Company to lay certain additional mains, and to pay the city a sum equal to $5 per million gallons for each and every million gallons of water which might be conveyed by the mains beyond the city, and that it was, in the judgment of the council, to the advantage of the city to accept the offer, and it was ordained that the offer be accepted, and the right granted to the Water Company to lay and maintain water mains, not exceeding two, for a period of 25 years from the date of the ordinance, to wit, June 21, 1904 (the 25 years expiring June 21, 1929); that the grant was on condition that the Water Company should maintain, throughout the time of the grant, 20 fire hydrants along the line of each of the mains, keep them in good repair, and furnish the city free water for their purposes. It further provided that the city might from time |