Hoefler v. Hoefler — 42 N.Y.S. 1035

Majority

p. 1035

HOEFLER v. HOEFLER.

(Supreme Court, Appellate Division, Fourth Department.

December 15, 1896.)

Headnote

1. Tort—Wiii-dx Action Lies—Preventing- Enforcement of Decree.

An action will lie by a wife, in whose favor alimony has been decreed pending divorce proceedings, against one who has induced and aided the husband to leave the state, in order to avoid the payment of the alimony, as to which he was then in default.

2. Same—Lack of Precedent.

It is no objection to such action that it is not supported by precedent.

3. Evidence—Sufficiency.

It was a question for the jury whether defendant, with knowledge of the facts, had induced and aided plaintiff’s husband, against whom alimony had been decreed in an action for divorce then pending, to leave the state, so as to avoid its payment, where there was evidence that defendant had given the husband money, and advised him to leave, saying, “I hope you will be so far away now that you won’t have to pay any more alimony.”

The action was commenced November 7, 1893. The cause was first tried at the Monroe circuit in January, 1895. A verdict was then rendered for the plaintiff, and judgment entered thereon, which was reversed by the appellate division, Fourth Department, in February, 1896. 37 N. Y. Supp. 436 . The plaintiff is the wife of the defendant’s son, John O. Hoefler, whom she married in June, 1888, and by whom she had two children. They lived for a while in Geneva, N. Y., and in- February, 1892, the plaintiff left her husband, returned to her parents in Rochester, and commenced an action against her husband for separation and support. On April 25, 1892, the Monroe special term made an order, upon the hearing of the parties, requiring John 0. Hoefler to pay the sum of 825 counsel fees and the sum of 84 per week to his wife for alimony during the pendency of the action, which allowance was to commence April 25, 1892. The plaintiff's husband was a letter carrier in Geneva, receiving a salary of 8600 per year. He paid the weekly allowance, as required by the order, up to September 1, 1892. This action is still pending. John O. Hoefler departed from the state on the 25th of December, 1892, and went to Lincoln, in the state of Nebraska, where he has since remained in business, and has not contributed anything towards the support of his wife or family, or paid the weekly allowance.

The complaint in this action seems to have been intended in a double aspect, —to recover damages against the defendant for alienating the affections of the plaintiff’s husband, and depriving her and her children of his support, and also to recover for the unpaid alimony; but it was held, upon the first appeal in this action, by this court ( 2 App. Div. 8 , 37 N. Y. Supp. 436 ), that if any cause of action existed upon the allegations in the complaint, it was to recover

Action by Mary E. Hoefler against Mary R. Hoefler to recover damages for procuring her husband to leave the state for the purpose of avoiding the payment of alimony. There was judgment of nonsuit, and plaintiff moved for new trial on exceptions which were ordered to be heard by the appellate division in the first instance.

Granted.

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'damages against the defendant for advising and procuring the husband to leave the state, and remain out of it, lor the purpose of avoiding the payment of the alimony or support, and that she furnished him money for that purpose, and, inasmuch as evidence was received upon the first trial not competent. upon the last-named issue, a new trial was ordered. The complaint, after alleging, the existence of the first action, and the order for the payment of .alimony, and the payment by John G. Hoefler of the counsel fees and the weekly allowance up to September 1st, continues: “When he ceased to pay the same, and without making any provision for the support of the plaintiff and her said children, or for the payment of the said sum of $4 each week as provided in said order; and said defendant in this action, well knowing of said order of said court, and wrongfully contriving and intending to injure the plaintiff, and deprive her of the comfort, society, and aid of her said husband, John 0. Hoefler, maliciously advised and counseled and induced the said .John O. Hoefler to secretly leave the state of New York, and find a separate residence elsewhere, and furnished the said John O. Hoefler with money and means to leave this state, and thereby to disregard said order and to avoid it, and avoid paying the moneys thereby ordered to he paid, and thereby deprive iplaintiff of the same, and of all efforts to compel the said John O. Hoefler to support plaintiff and their said child Josephene; and that said John 0. Hoefler acted on said advice of the said defendant, and upon the money and means furnished by said defendant, and, without the knowledge or consent of this plaintiff,-the said John C. Hoefler, in pursuance thereof, left this state on or about the 25th day of December, 1892, and went to Lincoln, in Nebraska, and lias ever since remained in Nebraska, claiming his residence there, away from the plaintiff, and ever since that time the said John- G. Hoefler has been, and is now, without this state, and under the defendant’s custody, control, and influ■■ence, * * * with intention to remain without the state.” The defendant answered, admitting the order for alimony, and the default after September, 1892, besides other admissions, with denials.

The plaintiff testified to a conversation with the defendant in September, 1893, in the presence of her sister, ICittie Adwen. The defendant had been out to see her son John, and after some conversation on that subject and about a present, the plaintiff’s testimony continued: “I said I had received a Christmas present from my husband. She [defendant] said, ‘Did yon get a present from John?’ I said, ‘Yes; one that I could cany for life.’ She asked what it was. I said it was that scandal and disgrace he got into in Geneva. She got up and said he didn’t have to leave Geneva for any scrape with that woman there. She said she gave him money to go away, and I said I was glad to know how my money had been stopped. (Objected to. The last clause of the statement was stricken out. The witness continues.) I said I was glad I had now found out who had stopped my money. She said, ‘What do you mean by that?’ I said, ‘If you gave my husband money to leave the state, and go away, you were the one who took the bread and butter from my little children’s mouths.’ Q. What else was said? " A. She said that she was very proud of him there, and she was very glad that he went there, and that was the reason why she went there to see him; that he was getting- along grandly.” ICittie Adwen, the plaintiff’s sister, testified that she heard this conversation, or apart of it, and adds:’ “They got to talking, and Mrs. Hoefler [defendant] ■said, ‘You have a very nice cape on.’ My sister-in-law said, ‘Yes; my mother gave me that as a present, and her and I paid for it.’ She said, T got a present from John,—one that I will never forget,—that scrape he got tnt.o with the Landers woman in Geneva.’ Mrs. Hoefler said, ‘No; he didn’t have to leave Geneva. I was advised by my lawyer to send Johnnie away.’ ” William E. Leach, another witness for the plaintiff, testified that he knew the husband when he left Geneva; that he went with the husband to defendants store, when he heard a conversation between the husband and the defendant a.s follows: “Q. State just what you saw and heard. A. He walked up to ■his mother, and said, ‘Mother, I want to get some money.’ She said, ‘What for?’ He said, T am going away.’ She said, ‘Where are you going?’ He said, ‘To Lincoln, Nebraska; I can get a good job.there.’ He said, T would like a hundred dollars.’ She said, T can’t let you have that.’ He said, ‘How much can you let me have?’ She said, T might spare you fifty dollars.’ She

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gave him some money. He put it in his pocket, and she said, I hope you will be so far away now that you won’t have to pay any more alimony to that Irish thing.’ Then we went out, and went into the International Hotel. 1 saw her count the nione;', but I was some feet from them. I saw the money in his-possession after that.” This was the substance of the testimony upon the subject of the defendant inducing the husband to leave the state.

Argued before HARDIN, P. J., and FOLLETT, WARD, and GREEN, JJ. '

William E. Edmonds, for plaintiff.

Thomas Raines, for defendant.

Two questions arise upon this review: First. Was there sufficient evidence to go to the jury upon the question as to whether the defendant had notice of the order for alimony, and induced John C. Hoefler, plaintiff’s husband, to leave the state and remain beyond its jurisdiction to avoid the payment for support provided by the order? Second. Conceding that the first proposition is-answered in favor of the plaintiff, then was a cause of action created in favor of the plaintiff against the defendant to recover the damages sustained by the plaintiff in consequence of the defendant’s acts?

In disposing of this case, we must give the plaintiff the benefit of all the testimony given upon the trial, treating it as true, and of all inferences in her favor which may legitimately flow from such testimony. We think the statement of the testimony above given solves the first question in favor of the plaintiff. There was sufficient evidence to go to the jury as to whether the defendant, with a view of defeating the plaintiff’s claim for the weekly allowance, had induced the plaintiff’s husband to leave the state to prevent any proceedings against him for the enforcement of the order directing the allowance, and that she furnished him with means to accomplish that end.

The plaintiff’s counsel claims that the answer admits the allegation in the complaint that the defendant did these acts knowing of the existence of the order and of its terms. The distinct allegation of her knowledge in this regard, in the complaint, is certainly not expressly denied, and the defendant does admit in her answer that at some time she had knowledge of the existence of that order. It is true the answer has the general statement that it denies every allegation in the complaint not before expressly admitted (a form of pleading not to be commended), yet, the defendant not having denied specifically this allegation, and the answer containing no general denial of the complaint, the defendant was called upon, when she admitted that at some time she had knowledge of the order, to deny specifically that she had such knowledge at the time of the husband’s departure from the state, if she intended to put the allegation in the complaint in issue. But, be that as it may, the evidence we have quoted may indicate a knowledge of the order. It was for the jury to say. The use of the word “alimony” by the defendant is significant in this connection. There was evidence that the defendant was aware of the action for a separation.

p. 1038

The defendant’s counsel strenuously contends that the plaintiff has no remedy by action against the defendant; that it does not appear that the alleged tort of the defendant caused any damage whatever to the plaintiff; and, if any damage did arise, it was too remote, indefinite, and contingent to be recovered. And he cites Lamb v. Stone, 11 Pick. 527 , where a Massachusetts court holds, in effect, that where a defendant had fraudulently purchased the property of a debtor, and had induced him to leave the state of his residence, a creditor of that debtor who had intended to attach the property of the debtor to secure his debt, and who had intended to arrest the debtor, but had never carried his intention into execution, or procured any attachment against the debtor, until the property was sold and he had left the state, had no cause of action, for the excellent reason, as the court says, that the creditor had obtained no lien upon the property by attachment. The claim of the plaintiff consisted, simply, in an intention to effect the lien which was never consummated. In the case at bar, the husband was in contempt for violating an absolute order of the court in the plaintiff’s favor requiring the husband to pay her money. There was no contingency about it. Under the statutes of this state, the plaintiff was entitled to proceedings against the husband to compel its payment and to punish him for contempt. Of this right the plaintiff was deprived by the intermeddling of the defendant in placing the husband beyond the jurisdiction of the court. The damage in this case (the loss of the alimony) was not remote or contingent. The grasp of the law was upon this husband, and upon his property and earnings, for the benefit of the wife, which the husband could not escape unless he was placed beyond the jurisdiction of the court, so that its order could not be enforced against him; so that the direct consequence of the defendant’s acts was that she lost her support and the remedy to compel its payment. The damages were, therefore, the natural and legitimate result of the defendant’s acts.

In Plaster Co. v. Seabury, 43 Hun, 611 , it appears that the plaintiff in the action had brought a prior action against the same defendants to establish a trade-mark, in which it was successful, and had obtained a permanent injunction enjoining the defendant from violating the trade-mark. The action in the case cited was brought, among other things,' against the defendants, to recover damages for a violation of this injunction which had accrued since the judgment in the first action. It was insisted there, as it is here, that the proper remedy of the aggrieved party was to institute proceedings to punish the defendant for a contempt where the damages sustained could have been included in a fine; but Judge Van Brunt, in a clear opinion, representing the general term of the First department, held that, notwithstanding the violation of the injunction order subjected the defendants to contempt proceedings, and they might be proceeded against and fined, and the damages collected in that way, there' was nothing in the Code which restricts the plaintiff to this form of procedure, but it had a right of action for the damages.

In King v. Barnes, 113 N. Y. 476 , 21 N.

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ment required the president and directors of a corporation to transfer its stock upon the books of a corporation, one Barnes was a defendant in the action, though not called upon personally to perforin the act required, but who advised and aided the defendants whose •duty it was to transfer the stock to disobey the judgment, and it appeared that Barnes “supported them out of the jurisdiction when the fire of the courts became too hot for their safety, or their orders could he thwarted by that means,” and Barnes was fined and imprisoned for contempt. Judge Finch, at page 479, 113 N. Y., and page 183, 21 N. E., in referring to section 14 of the Code of Civil Procedure, and the last clause of subdivision 4, says:

“The subdivision specifies certain acts of interference with the due and orderly ■(«•ogress of an action or proceeding to its final and ultimate close, and then adds, generally, a provision which covers any other interference with it. So that any person who interferes with the process or control or action of the court in a -pending litigation, unlawfully and without authority, is guilty of a civil contempt, if his act defeats, impairs, impedes, or prejudices the right or remedy of a party in such action or proceeding.”

Here is a clear intimation that damages may arise from such an interference which the injured party is entitled to recover in contempt proceedings, and the case in Hun, cited, holds, as we have seen, that such damages may be recovered by action. The act of the defendant complained of certainly tended to defeat, impede, or prejudice the right or remedy of the plaintiff in the action for a separation.

The defendant finally claims that no precedent can be found for this action. This action would, under the old system, when actions had names, have been an action upon the case, which is said to be a remedy adapted to every special invasion of one’s rights. Millar v. Taylor, 4 Burrows, 2345. And in all cases ivhere a man has a temporal loss or damage by the wrong of another, he may have an action on the case, to be repaid in damages. Com. Dig. “Action on Case”; Commissioners v. Duckett, 20 Md. 468 . To maintain an .action on the case it is not necessary that it should be supported by instances or precedent. It is sufficient if the case in question is covered by principle. McFarlane v. Moore, 1 Overt. 174 . In Hurwitz v. Hurwitz, 30 N. Y. Supp. 208 , the general term of the New York city court held that a judgment creditor might maintain an action at law against the judgment debtor, and another to recover damages for conspiring to prevent the collection of the judgment by removing and disposing of such debtor’s property and placing it beyond the reach of execution. In Michalson v. All (S. C.) 21 S. E. 323 , it was held that where a person, with the connivance of the owner, converts to his own use farm products, subject to an agricultural lien, and places them beyond the reach of the lienee under the statutory proceedings, the latter may, in an action similar to case .at common law, recover his damages. We need not multiply cases to sustain the principle here contended for.

The plaintiff’s exceptions should be sustained, and a new trial granted, with costs to abide event. All concur.

Cases cited

King v. Barnes 113 N. Y. 476 N.Y. 1889-05-03 p. 1038