p. 257Sarah Curtis, Plaintiff, v. Edward Curtis, Defendant.(Supreme Court, Onondaga Special Term,Headnote
Action for a separation — Alimony etc. refused.Alimony and counsel fees will be refused a wife in her action, among other things, for cruel treatment and abandonment, where the acts of cruelty took place before the making of a voluntary agreement of separation and are not the gravamen of the action, and where the only abandonment upon the part of the husband, alleged or provable, took place under and according to the said agreement.
Motioh for alimony and counsel fees.
F. W. Talbott, for motion.
A. C. Phillips, opposed.
This action, in part, is brought upon the theory of one to procure a judgment of separation upon the ground of cruel and inhuman treatment and of abandonment. The other part of the action is devoted to an attempt to get rid of an agreement made between the parties hereto, with the intervention of a third person, as trustee, for a voluntary separation, and under which defendant paid to plaintiff $200, and under which they have for several years been living apart.
The only acts alleged in the complaint upon which judgment could be asked' upon the ground of cruel and inhuman treatment took place nearly eight years ago, and before the execution of the
p. 258agreement in question, which is dated May 9, 1892, and they are alleged not so much as a ground for separation as constituting a species of duress under which the plaintiff was induced to execute the agreement of separation which she now seeks to get rid of. The only abandonment alleged in the complaint, or provable under it, is the voluntary one which has taken place between the parties hereto, under the agreement of separation hereinbefore referred to.
Under the circumstances, I do not think that the plaintiff presents a sufficient ground for granting the motion in question, and which is, therefore, denied.
Motion denied.