Halsted v. Halsted — 21 A.D. 589

Majority

p. 589

Charles S. Halsted, Appellant, v. Sarah B. Halsted, Respondent.

Headnote

Alimony granted to a wife, after a successful appeal by her, and a reversal of a judgment of divorce in favor of the husband.

An objection that a wife, who has succeeded in reversing a judgment for an absolute divorce rendered in favor of her husband, applies, after the decision of the appeal, but before the entry of the order directing a judgment of reversal, for an order directing the payment of alimony (certain allowances having been already previously granted to her during the pendency of the action), will not be sustained on appeal.

Under what circumstances the alimony thus applied for should be continued only .from the time of the reversal of the judgment, considered.

Appeal by the plaintiff, Charles S. Halsted, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th

p. 590

day of May, 1897, directing the payment by him of alimony and counsel fees!

The action, which was brought to obtain- an' absolute divorce, was begun in December, 1892. In June, 1893, an order was entered granting the defendant $300 per month alimony, which amount was to be credited-upon a separation agreement previously, entered into between the parties.. In January, 1894,' this provision was increased to $400 per month.

The plaintiff succeeded in the action, and by the final decree which was entered in November, 1894, the defendant’s alimony was reduced to $50 per month. Upon an appeal by the defendant, he Appellate Division on April 15, 1897, reversed the decree of divorce; and thereupon, the defendant applied for and obtained the order appealed from, which directed the payment to the defendant as and for arrears of alimony the sum of $4,390.82, and alimony at the rate of $275 per month, and $800 counsel fees.

George W. Carr, for the appellant.

Henry D. Hotchkiss, for the respondent.

This action was begun to obtain an absolute divorce from the defendant. Such proceedings were had that on the 26th of November, 1894, a decree of absolute divorce was entered in favor of the plaintiff: Prior to that time certain allowances had' been made to the defendant by way of alimony and counsel fees. Prom this decree an appeal was taken to the Appellate Division, the judgment was reversed and a new trial ordered,- the decision being handed down on the 15th of April, 1897. Before any formal order of the Appellate Division was entered, the defendant’s application-, which resulted in the order now appealed from, was made and decided, the court, by special direction in the order, overruling the plaintiff’s -objection that the application was premature. Before the order upon this motion was entered the formal order of the Appellate Division, reversing the judgment and ordering a new trial, was entered.' We do not think that the preliminary objection made on the part of the appellant was well taken. The Appellate Division had formally announced what it intended to do with the appeal,, and

p. 591

the appellant’s counsel states that on the 15th of April, 1897, which was the day of the announcement of- the decision, the judgment was reversed and a new trial ordered by the Appellate Division, The entry of the formal order carrying into effect the announced determination of the Appellate Division was made before the entry of the order upon this application ; and in an action of this description we do not think that the technical objection urged by the plaintiff should prevail.

It appears from the evidence that the plaintiff is in receipt of the income of certain trust funds, and that, relying upon the decree of divorce which he had obtained, he had drawn the moneys belonging to these trust funds and expended the same. That he had a right to rely upon such decree seems to be recognized in the case of Bailey v. Bailey ( 45 Hun, 279 ), and in determining this application we have to consider the position of the plaintiff as it has existed since the reversal of the judgment in question. It appears ' that his income has been in the neighborhood of $10,000. ' It further appears that, prior to the entry of the judgment, certain allowances had been made for alimony to the- defendant (namely, at the rate of $4,800 a year), which were to be credited upon a certain separation agreement between the parties. We think that these allowances should have been continued from the time of the reversal of the judgment, but that nearly the whole income of the plaintiff should not have been applied, as it was by the order appealed from-.

We are of opinion, therefore, that the order should be modified by allowing the defendant alimony at the rate and upon the terms which prevailed prior to the entry of the judgment; and as so modified the order should be affirmed, without costs. ■

Rumsey, Williams and Ingraham, JJ.,. concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. ■ b