JACOB FRANK, RESPONDENT, v. JOSEPH J. DAILY ET AL., TRADING AS CHELSEA TIRE AND REPAIR COMPANY, Submitted August 3, 1918-Decided March 4, 1919. Defendants appealed from a judgment against them in a District Court, and there being no disputed question of fact, this court reversed the judgment below 'and ordered a judgment final in this court in favor of the defendants. Held, that in such a case the appellate court ought not, in the exercise of discretion, withhold from the defendants, the prevailing party, the costs of the appeal under a statute providing that the prevailing party in any action at law shall be entitled to costs, unless the court should order otherwise. On motion for allowance of costs. Before Justices BERGEN, KALISCH and BLACK. For the motion, Lee F. Washington. Contra, Endicott & Endicott. The opinion of the court was delivered by. BERGEN, J. The defendants having seized an automobile for a lien for repairs under "An act for the better protection of garage keepers and automobile repairmen" (Pamph. L. 1915, p. 556), the plaintiff, the owner, brought an action in replevin in a District Court and recovered, from which result in the trial court defendants appealed. There was no dispute as to the facts, and the legal propositions advanced by plaintiffs being, in the opinion of the Supreme Court, unsound, it reversed the judgment, and, following Taylor v. Reed, 68 N. J. L. 178, and Sullivan v. Visconti, Id. 543, ordered judgment final to be entered in that court in favor of the defendants who now apply for an order allowing costs of the appeal in this court. In Lehigh Valley Railroad Co. v. McFarland, 44 N. J. L. 674, the Court of Errors and Appeals held that there being no statute giving costs on error, they were not recoverable, notwithstanding a rule of the court provided that the prevailing party should be considered as recovering costs unless the court, in express terms, adjudged to the contrary, holding that the rule only applied to cases where costs were recoverable by statute. But since that case was decided the legislature has enacted (Pamph. L. 1911, p. 756) that "the prevailing party in any action, motion or proceeding in the courts of law of this state shall be entitled to costs, except where otherwise provided by law, and unless the court or judge before whom such action, motion or proceeding shall be taken shall order otherwise." Thus we now have a statute which allows the prevailing party costs unless the court shall exercise its discretion to withhold them. This statute has been construed in Lynch v. Public Service Railway Co., 83 N. J. L. 783, and it was there held that when the reversal is due solely to a mistake by the trial judge, and does not finally determine any issue but leaves the parties where they were before the trial, it was a proper exercise of the power to withhold costs, and, consequently, it was determined that where the reversal resulted in a venire de novo costs of the appeal would not be awarded. In the case under consideration there was no venire de novo awarded; the parties were not left as they were before the trial, because the issues between them were determined, and a judgment final entered for the defendants. Certainly, in such a case the defendants are a prevailing party, and, under such circumstances, the court ought not to exercise its discretion to withhold costs from the prevailing party. Under this statute the prevailing party is entitled to costs. unless this court shall otherwise order, and we are of opinion. that in this case we should not otherwise order. The motion is granted. Submitted March 20, 1919-Decided May 3, 1919. 1. A married man entered into an agreement with his wife and a trustee for his wife that the wife might live separate and apart from her husband, he agreeing to pay, or cause to be paid to her, $25 a week for her maintenance. The husband charged his wife with adultery and ceased payments. The contract did not contain any covenant by the wife that she would remain faithful to her marriage vows. The husband subsequently obtained a divorce from his wife for adultery, and the trustee for the wife sued for the weekly payments 'accruing between the time of the adultery charged and the decree for divorce. Held, that recovery was not barred by the adultery until at least it was established by the decree, the husband being bound to support his wife according to his contract, so long as she so remained and the separation continued under the agreement. Such a trustee may maintain an action at law to enforce the payments promised by the husband. On appeal from District Court. Before Justices BERGEN, KALISCH and BLACK. For the respondent, Weller & Lichtenstein. For the appellant, J. Emil Walscheid. The opinion of the court was delivered by BERGEN, J. This action is brought by plaintiff as trustee to recover the sum of $25 a week from the 2d day of November, 1915, to the week ending March 1st, 1916, payable under an article of separation signed by the defendant, the husband, on the one part, and his wife and the plaintiff, Whittle, as trustee, on the other part, by the terms of which the husband agreed with the wife and the trustee that defendant's wife might at all times thereafter live separate and apart from him and that he would not molest or disturb any persons receiving or entertaining her; that she might reside at such places with friends or other persons and follow any trade or business she might choose, or make any claim for any household goods she might remove from the place they then lived, and that she might enjoy and dispose of the same as if she were a feme sole, and further agreed that he would pay towards her support and that of their child $25 a week which she agreed to take in full satisfaction for her maintenance and all alimony, and the trustee agreed to indemnify the husband from all debts of his wife, and if the husband should be compelled to pay anything on her account, the trustee would repay the same on demand, to the husband. The husband, claiming that his wife was guilty of adultery, ceased payments in October, 1915, and shortly thereafter filed his petition for divorce from his wife for adultery, which resulted in a decree nisi, in his favor, May 1st, 1916. The record shows that the action covers a period beginning after the alleged adultery and ending prior to the decree nisi. The plaintiff recovered and the defendant appeals. There is nothing in the agreement which in terms avoids it, if the wife shall not faithfully observe her marriage vows, it contains nothing except the promise of the husband to permit his wife to live separate from him, and to pay her an agreed sum for maintenance. The first matter argued by appellant is that such a contract is beyond the jurisdiction of a court of law, and only enforceable in equity. This is not sound where, as in this case, the contract is with a trustee for the wife. All the cases in equity referred to by appellant are those in which the contract is between the husband and wife and could only be enforced in equity, but where the contract is with a trustee he may enforce it at law for the benefit of the spouse he represents. Whatever may be the effect of a lawful decree dissolving the marriage, that consideration is not present in this controversy, because the action relates entirely to payments maturing prior to that event, and the husband was lawfully bound to maintain his wife, at least until they were legally divorced. So, we have this situation, a lawful marriage, articles of separation, which in no way bind the wife to chastity of conduct, with the legal liability of the husband to support the wife until, at least, they have been lawfully divorced. Under our cases there seems to be no doubt that a trustee may bring an action for the violation of the contract, and his name is manifestly introduced in order that an action at law may be maintained rather than a bill in equity, which would be necessary if the contract was directly with the wife. The contract sought to be enforced is to pay during separation. The parties have contracted, one to pay and the other to receive, in a way recognized at law. The second point is that the rights of the wife and her trustee have been forfeited by the act of adultery committed by her in October, 1915. It seems to be well settled that such subsequent act does not forfeit the right of the trustee to recover at law. When a bill is filed by the wife against her husband, because they are incapable of contracting so that a court of law would not recognize their engagements, a court of equity enforces the contract to the extent it finds it equitable, but that rule does not apply at law, and the institution of a suit for divorce is not a bar to the enforcement of the agreement for support (Halstead v. Halstead, 74 N. J. Eq. 596), and while, if the wife had filed a bill to enforce the contract with her husband, equity may consider what should be done-that is not the rule at law, certainly, not before there is a decree establishing the adultery. In Galusha v. Galusha, 116 V. Y. 635, it was held that such a contract made after a separation has taken place, through the intervention of a trustee, is binding upon the husband, saying: "The consideration for an agreement of separation fails, and the contract is avoided when separation does not take place; or where, after it has taken place, the parties are reconciled and cohabitation resumed. Neither of these events happened. The suggestion that the subsequent violation of the marriage vow by the defendant may |