Hobby v. Hobby

This action is brought to obtain a decree of separation from defendant’s bed and board. The defendant set up as a bar that in the year 1868, in a similar action instituted by the plaintiff against him, she recovered a judgment of separation and for alimony. The plaintiff admits the recovery of this judgment, but, to avoid its effect, avers that the parties became reconciled, and lived together as husband and wife from 1875 to 1880, when the defendant again abandoned her. At that time the parties, through the intervention of a trustee, entered into an agreement of separation, whereby the defendant covenanted to pay for the plaintiff’s use the sum of $30 monthly. The defendant having made default in the payment of this allowance, plaintiff instituted this action.

If it is clear that the plaintiff cannot succeed in this action, then neither alimony nor counsel fee should be allowed. Ramsden v. Ramsden, 28 Hun, 285 ; Davis v. Davis, 75 N. Y. 221 . And, if the decree of 1868 is in full force, it is practically conceded that the present action cannot be maintained. The plaintiff’s contention is that the reconciliation of the parties operated as a discharge and determination of the decree of separation. The defendant insists that, under section 1767 of the Code, this can only be effected by an order of the court on the application of the parties, which, concededly, has not been had. The exact question has been determined by the general term of the First department in Jones v. Jones, 90 Hun, 414 , 35 N. Y. Supp. 877 , adversely to the claim of the plaintiff. It also arose in an action in the courts of New Jersey, between the parties to the case cited. Jones v. Jones (N. J. Ch.) 29 Atl. 502 . And the decision was the same as that of the New York court. In the opinions delivered with these decisions the question is discussed at length, and the authorities and statutes on the subject reviewed. In the case in 29 Atl. a question of New York law is decided by the vice chancellor of New Jersey; but that judge was for many years, before he went on the bench, a distinguished practitioner in the city of New York. The opinion delivered by him states so clearly the argument and reasons resulting in his decision as to leave but little to be added by us. Undoubtedly, under the English ecclesiastical law, a reconciliation between the parties revoked a decree of separation, without any action by the court. Whether this resulted from the peculiar form of the decree, or from the general ecclesiastical law on the subject, it is needless to determine. The whole subject was reviewed at length by Chancellor Kent in Barreré v. Barrere, 4 Johns. Ch. 187 . The chancellor expressly refused to grant a separation until the parties should be reconciled to each other, though he assumed that he had competent power to make such a decree. “But such a general decree seems to be of too loose a texture, and to be too destitute of the requisite sanction. It separates the parties until

The order appealed from should be reversed, and the plaintiff’s application denied, without costs. All concur.