Ober v. Ober — 28 N.Y. St. Rep. 23

Majority

p. 23

Clarinda E. Ober, Resp’t, v. Hosea J. Ober, App’lt.

(Supreme Court, General Term,, Third Department,

Filed December 11, 1889.)

Headnote

Divokce—Alimony.

Plaintiff brought this action for divorce on the ground of adultery, and was refused alimony, but granted a counsel fee. It was shown that five years before plaintiff had obtained a divorce from defendant on the ground of adultery, in New Hampshire, and by that decree the marriage was annulled. Afterwards the defendant married, in Massachusetts, a woman with whom the present complaint charges adultery; the plaintiff now claiming that the New Hampshire divorce was void. Held, that, upon these facts, no allowance for alimony or counsel fee was proper..

Appeal from order granting plaintiff an allowance for counsel fees and expenses in this action for divorce.

B. Corbin, for app’lt; John P. Kellas, for resp’t.

The plaintiff brings this action for divorce on the ground of adultery. was married to plaintiff, as alleged; avers that in an action heretofore brought by the plaintiff against him in Hew Hampshire for divorce on the ground of adultery a judgment was heretofore entered, by which the marriage was annulled; avers that after said divorce he married, in the state of Massachusetts, the woman with whom, in the present complaint, he is alleged to have committed adultery. The plaintiff asked for alimony and an allowance for counsel. The special term granted the latter only, and the defendant appealed. In her petition for alimony the plaintiff set forth the Hew Hampshire action, giving a copy of the judgment roll, and averred that that judgment was void. The principal fact stated to show that the judgment was void was that defendant was not a resident then of Hew Hampshire.

The defendant’s contention is that where the marital relation is shown not to exist • there should be no allowance for alimony or counsel fee; and that by the decree in Hew Hampshire this relation has been dissolved'.

On the motion papers for alimony appears a copy of the judgment roll in the divorce suit in Hew Hampshire.

In considering this question we should notice the reason for which courts originally granted alimony and allowances. It was that.a married woman could make no contract, and therefore

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could not agree to compensate the counsel, and also that she, to. state it loosely, had no property under her control, and therefore-had no means of payment.

Her condition at this day is quité different, although the power: to grant alimony and allowance is continued by the Code.

But in the present case the plaintiff, as a practical matter, has been for some five years free from her husband. She on her own" motion has become separated from him. He. has accepted the de-/ cisión of the New Hampshire court by marrying again. So that • he could not, as a practical matter, assert any power or control over her. She really stands as independent of him, whatever the. legal position may be, as any plaintiff towards any defendant. Why then should he be required to pay her counsel? They will be employed to show that a judgment which she obtained, and which he has in the most solemn manner accepted, is void. They will be employed to show that he has committed the crime of bigamy, ana doing this on reliance in her most solemn assertion that he was free to marry.

Of course these considerations may have no effect on the trial of the issues. But it seems to us that they are very important on the present question.

We do not think it reasonable to compel the defendant to pay the counsel fees of a litigation where the plaintiff’s own'act has led him into‘the alleged wrong.

• The learned justice at special term had himself much hesitation in granting any allowance, and on the whole we think none should have been granted.

Order reversed and motion denied. No costs.

Landon and Fish, JJ., concur.