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Thrall v. Thrall

31 N.Y.S. 591 Court N.Y. Gen. Term Decision date 1894-12-10 English

Delivered by CULLEN, J.

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p. 591
THRALL v. THRALL.
(Supreme Court, General Term, Second Department.
December 10, 1894.)

Headnote

1. Alimony—Stipulation as to Amount.
Where a deed of separation made pending an action for separation provides that the husband shall pay the wife $50 per week for her support, and that, on default, an order might be made granting alimony at the same rate, the husband cannot on a motion for alimony pendente lite object that his wife had not a meritorious cause of action, or that $50 per week would be excessive.
2. Same—Time op Allowance.
Alimony pendente lite can be allowed only from the time notice of an application for its payment is given.
Appeal from special term, Kings county.
Action by Mary E. Thrall against Edwin A. Thrall. From an order granting alimony at $50 a week pendente lite, defendant appeals.
Modified.
Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
Taylor & Parker (Alfred Taylor, of counsel), for appellant.
Alexander Cameron, for respondent.

This is an appeal from an order made by the special term in an action for separation, granting the plaintiff $50 a week alimony pendente lite. The defendant insists that the application should have been denied on the ground that the plaintiff has not a meritorious cause of action, and that, if granted, the amount allowed is excessive, in view of the financial condition of the defendant. The action was instituted in 1891. Thereafter the parties executed a deed of separation, by which the defendant covenanted to pay the plaintiff $50 a week for her support. As long as such payments were made the proceedings in this action were to be stayed, and upon default in such payments it was stipulated that an order might be made by the court granting plaintiff alimony at the same rate. The defendant made default on May 19, 1894, and notice of application for alimony was given on July 5tli. It is a well-settled rule that parties may make law for themselves, which the courts are bound to administer, if no question of public policy is concerned. In re New York, L. & W. R. Co., 98 N. Y. 447 ; Sentenis v. Ladew, 140 N. Y. 463 , 35 N. E. 650 . The provisions of the deed of separation are a complete answer to defendant’s objections both to the alimony and its amount. We do not say that the defendant would be allowed to stipulate himself into prison by agreeing to a sum beyond his power to pay. But there is no danger of that character here, as the defendant, on his own statement, is worth at least $30,000, and the action can be brought on for trial at any time.

p. 592
We are of opinion, however, that the allowance of alimony was ordered to be made from too early a time. It seems settled by authority that alimony pendente lite can, as a rule, be made only for future support, and should commence only at the time of notice of an application for its payment. Collins v. Collins, 10 Hun, 275 ; Beadleston v. Beadleston, 103 N. Y. 402 , 8 N. E. 735 ; McCarthy v. McCarthy, 137 N. Y. 500 , 33 N. E. 550 . There is no provision in the deed of separation increasing the poAver of the court in this respect. For the unpaid weekly allowance prior to the motion for alimony, the plaintiff must recover by her trustee in a suit upon the covenants of the deed, or await final judgment, when the court may make such allowance for this period as may be just. Percival v. Percival, 124 N. Y. 637 , 26 N. E. 540 . The order appealed from should be modified so as to direct the payment of the alimony to commence on July 5th, and as modified should be affirmed, without costs of appeal: All concur.

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