Ulbricht v. Ulbricht — 69 N.Y. St. Rep. 723

Majority

p. 723

Frederick J. Ulbricht, Resp’t, v. Alida S. Ulbricht, App’lt.

(Supreme Court, General Term, First Department,

Filed October 18, 1895.)

Headnote

Divorce—Alimony.

In an action for divorce by a husband, the wife’s right to alimony pendente lite is not lost by her delay in demanding a trial of the issue by a jury.

Appeal from an order, vacating an order granting to defendant alimony pendente lite and counsel fees.

On September 18, 1894, plaintiff commenced this action for an absolute divorce upon the ground of defendant’s adultery. Issue was joined on November 12th. On December 11th, an order was made at the special term of this court requiring plaintiff to pay defendant $5 per week alimony until the trial of the action and $50 counsel fee, which was paid in full down to the date of the motion upon which the order was made from which this appeal is taken. On the same day plaintiff served notice of trial for the January, 1895, special term of this court, issue having been joined on November 12, 1864. The case was placed upon the equity calendar of the court, being numbered 2,568, and would have been reached at the June term, 1895. Defendant took no steps

p. 724

to claim her right to a jury trial of the issue until May 16, 1895, when a motion was made and argued by her that issufes be framed for trial by jury, which motion was granted. The order on.said motion was entered June 5, 1895, awarding issues of fact to be tried by a jury “on the 1st day of September, 1895, or as soon thereafter as the same may be tried.”

3. Walker, for app’lt; W. B. Bronk, for resp’t.

This action was brought for a divorce, on the ground of adultery. The defendant was entitled, as a matter of right, to a trial by jury of the issue of adultery, and she could only be deprived of that right in the manner provided for by the Code. She was not obligated to move the court for the purpose of framing the issues in order that they might be put in position to be tried by a jury. This was the plaintiff’s duty, if he desired to have his action.tried; and the fact that the defendant undertook that duty at a late day, as the plaintiff claims, is no reason for depriving her of the order which had been made in her favor for alimony and counsel fees. If there was any loches, it was the loches of the plaintiff, in not prosecuting his action diligently, and getting it into a condition of readiness for trial.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.