Harrington v. Harrington ( 1948 )

The provisions of the decree for specific performance of the agreement for the maintenance and support of the infant complainant are directly contrary to the law as declared by this court in Apfelbaum v. Apfelbaum, 111 N.J. Eq. 529; SecondNational Bank of Paterson v. Curie, 116 N.J. Eq. 101; Mayhew v. Chapman, 117 N.J. Eq. 27; Aiosa v. Aiosa, 119 N.J. Eq. 385;Phillips v. Phillips, 119 N.J. Eq. 462; Corbin v. Mathews,129 N.J. Eq. 549; Armour v. Armour, 132 N.J. Eq. 298;Applegate v. Applegate, 135 N.J. Eq. 29; Lum v. Lum, 140 N.J. Eq. 137. See R.S. 2:50-37, as amended by chapter 235 of the laws of 1938; also Frank v.Juvenile and Domestic Relations Court, 137 N.J. Law 364. Chancery was without jurisdiction of the subject-matter, and these provisions of the decree are reversed.

Since there is no appeal from the provisions of the decree directing the specific performance of defendant's asserted undertaking to make a testamentary disposition in favor of the infant complainant, we have no occasion to consider them. The decree in this respect will not be disturbed.

The provision of the decree assessing a counsel fee and costs against defendant is also reversed. This question may be re-examined anew in the court below in the light of this disposition and such further proceedings as may be had upon the bill of complaint.

The decree is modified accordingly, without costs; and the cause is remanded for further proceedings not inconsistent with this opinion.

For affirmance — WACHENFELD, EASTWOOD, JJ. 2.

For reversal and modification — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, BURLING, JACOBS, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 12.