Giusto v. Giusto

84 A. 617, 80 N.J. Eq. 355, 1912 N.J. Ch. LEXIS 25

• Court: New Jersey Court of Chancery
• Decided: September 10, 1912
• Status: Published

Opinion

Garrison, V. C.

This is a divorce suit and a suit for maintenance tried together. ■ The divorce suit is by the husband against the wife, and accuses her of adultery with Eafaele Tirone in the months of October and November, 1909, at 92 Jefferson street and 119 Grand street, Hoboken. These parties were married in June of 1901, and lived together until the 10th of September, 1908. At that time they entered into a separation agreement by which he agreed to pay her $5 a week, and he did so down to four' weeks before the 22d of November, 1910, and at that time he conceived that he had evidence of her adultery and ceased the payments, and on that clay, November 22d, 1910, she began a maintenance suit against him. In the succeeding January he began a divorce suit agains! her, but for some reason, which has not' been explained, that was withdrawn, and’ a new one was begun on the-14th of March, 1911, and that is the one that I have tried.

It appears that he is in the express business, and1 that he and his wife owned and lived in 89 Jefferson street; that across the street from this place there was a fruit store kept by some people called Alcomando; that in this fruit store the young people of the neighborhood were accustomed to gather, and the woman who kept the fruit store, Mrs. Alcomando, was a witness in the suit, and testified that Mrs. Giusto and one Eafaele Tirone, who was a young man living in the neighborhood and who worked at the National Biscuit Company in New York, were accustomed to meet there very frequently; that they evidently awaited each other’s coming; that they had numerous conversations together, and would go into a place in the rear of the store, which was called a cellar, and which seems to have been a sort of a wood shed, and which had no window, and was totally dark, and they would stay there anywhere from twenty minutes to half an hour at a time, and that this kept up for a long time. She also sajrs that living with her, Mrs. Alcomando, was her husband’s mother, and that this husband’s mother was the aunt of Tirone, and that Tirone and Mrs. Giusto would very frequently eat at her house and go in and sit with this old lady for awhile (the old lady was bedridden) and that they would then go away together.

Mrs. Giusto, after she separated from her husband in 1908, lived for some time, T think, with her aunt on Second street, and then went to share the apartment of a Mrs. Sabadella up over this fruit store at 92 Jefferson street. Mrs. Sabadella stayed there until some time in October of 1909, and then she moved away, and Mrs. Giusto stayed there fifteen days longer, and then she hired a flat at 119 Grand street, Hoboken, on the ground floor, on the right-hand side, and she moved her belongings ■ there—there being some dispute as to whether she moved one bed or two—she says two, and the man who moved her says one; and she there furnished two bedrooms, she says. The other witnesses, who knew about it, say there was only one bedroom. The old janitor says there was no bed in the front room where she says there was a bed; and the little hoy (whose testimony, by the way, impressed me very favorably) testified that there was no bed in the front room; that he could see by looking in through the front, windows. However this may he, within two weeks after she had moved in there Tirone appeared and hired this front room, according to. her story and his story, and her two cousins’ story, and lived there for two weeks, at the end of which time they say he left a piece of paper in the keyhole saying that it was cold and lie was not going to stay any longer,' and he left the key. He had been living with his aunt and cousin at 68 Jefferson street for a period of about ten years, and went back there to live after his two weeks’ stay at Mrs. Giusto’s flat.

The whole question revolves around the doings at this last place, 119 Grand street, Hoboken. The husband contends that she committed adultery there, and she says she .did not. She brings Tirone who testifies that nothing-wrong happened; that he hired the room as she has said, and paid her $6, which was for a month, and stayed two weeks, and did not like it, and left. She brings the girls, her cousins, one of whom is about eighteen, and the other thirteen, and they, in the main, corroborate her story—although all of them are guilty, if the others tell the truth, of some untruths, because it was attempted to be made out that they scarcely knew Tirone, and that he was almost like a stranger walking in off the street and hiring a room because he saw a sign in the window; whereas, as a fact, he had known Mrs. Giusto for years and met her frequently, and he had known the elder Del Maestro girl, because the year before he had, become interested in her behalf and had taken the pains to take her over to the factory in Hew Tork and get her a job, which she still holds; and they undoubtedly must have met time and again in going to -and coming from work, and, according to her own testimony, lie was a visitor to her father and mother’s home. The little girl would have you believe that he introduced himself as an entire stranger to these women, both of whom he knew quite well.

There is a great deal on both sides of this case that is very difficult to believe—in fact, impossible, some of it.

After most careful consideration of all the facts (the case is one solely of fact), I find Anna. Giusto guilty of adultery at 119 Grand street. Briefly stated, my conclusion is based upon the following facts and inferences: Anna Giusto and her husband were living in a state of separation. She and Tirone undoubtedly sought each other’s society frequently, and exchanged notes, and so behaved, when together, as to lead to the inference that they had conceived a fondness one for the other. Mrs. Giusto’s moving to 119 Grand street is inexplicable upon any other theory than that she desired to have a place remote from her previous surroundings where she and Tirone could be together. Tirone came to .this place and lived there for at least two weeks while she was there.

The testimony shows, that she practically lived at her aunt’s, only coming to the Grand street address to sleep, and that there was no reason conceivable why she did not live at the aunt’s altogether, unless she wished to have a place where she could see Tirone. Similarly, Tirone came to this- place without any explicable reason excepting to be with Mrs. Giusto. He gives a reason for leaving the boarding place where he had been previously. and to which he returned, which is incredible and evidently a mere pretext. He brought no clothes with him to the Grand street address, and really did not make it his residence.' The testimony of Mrs. Giusto as to her inattention to the room which he rented from her, and his testimony concerning her lack of attention to it, shows that they neither of them are even approximating the truth in their evidence.

Np open mind can read the uncontradicted facts without reaching the conclusion that the proper inference to draw is that of guilt.

I will decree accordingly.