Simonds v. Simonds

This is an action for divorce on the ground of adultery. The defendant denies the adultery and also alleges adultery on plaintiff’s part

In pursuance of such leave the defendant made a second motion •of the same kind before the same justice, January 7, 1890. Numerous affidavits were used on each side. The learned justice wrote another opinion. He denied the motion for alimony ; but .granted the allowance of $150 for defendant’s expense in conducting the action and her defense.

Thereupon, the defendant gave .notice, February 13, 1890, for .another motion to be heard the 25th of February, to require plaintiff to pay her fifteen dollars per week for support of herself and her child, and for an additional sum of $250 to procure evidence and witnesses and counsel in the action. That motion was heard before Justice Fish. Numerous affidavits were again read on each side. The learned justice, in his opinion, states that the .sum of $150 theretofore allowed will fall short of the necessities of the case.. An order was made that plaintiff pay an additional sum of $250 for counsel, and for the failure so to do that his complaint be struck out; that he also pay $100 in thirty days for the support of defendant’s child, and $25 per month thereafter. And the question of the allowance of alimony was reserved for further •consideration.

It is evident that no change of circumstances had arisen since the decision of the second motion which materially affected the rights of the parties. This third motion was practically an appeal from the decision of Justice Putnam. He had determined the amount deemed necessary for counsel fee and expenses; and he had denied the motion for alimony. His order, though dated the 7th, was entered on the 20th of January.

It was not proper, therefore, for the defendant, in the short time of two weeks thereafter, to renew this motion, at least without showing that some new circumstances had arisen.

The place of trial is in Washington county. The first and second motions were made in Saratoga; the third in Fonda. It would ,seem as if the defendant was unwilling to renew her application before the same justice who had heard the first and second motions.

The reason given in defendant’s affidavit on this last motion why she renews it is that, as alleged, the plaintiff’s affidavit used ■on the second application is so full of falsehood that she believes the court was misled. That alleged falsity must have been known on the hearing of the second application. The defendant could then have asked leave to' have the motion stand over, that she might serve other affidavits, and that request would undoubtedly have been granted. But she proceeded with her motion, and she retains the benefit of the allowance then granted, and by this third motion seeks to increase it.

Of course, when circumstances change, it may be proper for the court to make new orders in respect to alimony and allowances. Hut this rule does not imply that the party, dissatisfied with the

We have examined the affidavits used on all of these motions. They are contradictory; and evidently some of them are false. It is not best for us to comment on them.

It is enough to say that the right in the court to make and modify from time to time such orders as these, Code, § 1769, does not justify the defendant in the practice followed in this case. The order of Justice Putnam had denied the matter both as to allowances and as to alimony. The defendant could have reviewed it on appeal. But an appeal does not lie to another -special term. If it did, the plaintiff might now move before Justice Putnam to reduce the allowance and alimony granted by Justice Fish.

Order reversed, with- ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

■ Landon and Mayham, JJ., concur.