Hardy v. Hardy — 25 N.Y. St. Rep. 832

Majority

p. 832

Adela L. Hardy, Resp’t, v. Frank Hardy, App’lt.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

1. Divokce—Alimony—Pendente lite—Code Oiv. Peo., § 1769.

Under Code Civil Procedure, § 1769, the court is empowered, in its discretion, during the pendency of an action for a limited divorce, to make an order for the payment by the husband of such sums of money as are

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necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife.

2. Same—When alimony excessive.

Where in an action for a limited divorce it appeared that the disagreement and separation of the parties was not owing wholly to the misconduct of the husband; that the wife had only herself to provide for, being secured the residence occupied by her; that the husband’s income amounted to about §5,000 a year; that he had overdrawn the amount to meet demands occasioned by the wife’s habits to the amount of §2,500, and that he was indebted to various persons in §2,000, Held, that an allowance of $175 a month, pending the action, was excessive, and should be reduced to §100.

Appeal from an order confirming the report of a referee, awarding alimony and an allowance for counsel in an action for a limited divorce.

Richard S. Newcombe, for app’lt; William G. Bussey, for resp’t.

By the order of which the defendant complains, $250 have been allowed by way of counsel fee, and $175 a month to the plaintiff for her support and maintenance during the pendency of the action. The order was made under the authority of section 1769 of the Code of Civil Procedure, empowering the court in its discretion, during the pendency of the action to make an order or orders for the payment by the husband of the sum, or sums of money, necessary to enable the wife to carry on, or defend, the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties. By the petition and affidavits used upon the motion the probability is evinced that the disagreement and separation of these parties was not wholly owing to the misconduct óf the defendant. That the plaintiff may have a legal right of action for a separation from the defendant, cannot be certainly determined, neither is it necessary that it should be, upon the papers and proofs which have been produced, but that she has to a certain extent contributed to the state of things existing between herself and her husband resulting in their separation is reasonably free from doubt. And under such a state of facts it is not the practice of the court to make in favor of the wife such an allowance by way of temporary alimony, as will operate as an inducement to delay a speedy trial and disposition of the action upon the evidence which the parties may be there able to produce. The income of the defendant is stated by himself to amount to about or near the sum of $5,000 a year, and against that his testimony is that he had overdrawn the amount to meet demands occasioned by the habits of the plaintiff to the extent of about $2,500, and he was indebted to various persons in about $2,000.

Concurrence

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This is probably a fair disclosure of the financial situation of the defendant, and to require him under these circumstances to advance the monthly payments of $175, as that has been required by the order, is more than equitably could have been exacted, especially as the plaintiff herself is in a measure to blame for her separation from the defendant. What this provision of the Code requires, is the necessary allowance to provide suitably for the support of the wife, haying regard to the circumstances of the parties.

She has only herself to provide for, and having been secured the residence occupied by her, by the act of the defendant, to secure the end mentioned in this section of the Code, and considering the circumstances of the husband,, the payment by him to his wife during the pendency of the action of the sum of $100 a month, would seem to be not only sufficient, but a just allowance. That will provide her with a suitable maintenance and support according to the circumstances of herself and her husband, and it is all that he should be required to advance during the pendency of this litigation. If the plaintiff shall be able to authenticate her right to a larger provision, that will be - seemed by a speedy trial of the action. And it is much better and more just that it shall be obtained in that manner, than that the court should undertake to make an allowance in her favor, which might operate as a motive to delay the trial of the suit.

The order should be modified by reducing the monthly payment to the sum of $100, and affirmed, as so modified, without costs of the appeal.

Bradt, J., concurs.

I concur in the result upon the ground that the allowance was excessive in any event. It seems to be agreed that, because the defendant had been exceedingly liberal to the plaintiff, giving her a house with, over incumbrances, $10,000, and $5,000 worth of furniture; therefore, the plaintiff is entitled to a larger provision for her support than she could have been entitled to, had the defendant heretofore given her nothing.