Simmons v. Simmons — 25 N.Y. Super. Ct. 712

Majority

p. 712

Simmons vs. Simmons.

Headnote

1. An allowance to the wife, in an action for a divorce a vinculo, pending the suit, is always.relatively smaller than a permanent provision after decree. As a general rule, temporary alimony ought to be limited to the wife's actual wants.

2. Where the real estate of the husband is quite sufficient for the security of the support of the wife during the litigation, and for the payment of such alimony as will probably be awarded by the final decree, he will not be restrained by injunction from selling or disposing of, during the pendency of the suit, a pair of horses and two carriages with which the wife had been furnished by her husband for her own separate use, while they lived together.

3. Although power is conferred upon the court, by statute, to require the husband to pay any sums necessary to enable the wife to carry on the suit, during ■ its pendency, there is no law which authorizes a judicial tribunal to compel a husband to furnish his wife, before final decree, with a house, furniture, horses or any other specific article, except money, in such sums as may be necessary to enable her to carry on the litigation, and for her suitable and comfortable subsistence.

(Before Barbour, J. at special term,

November, 1864.)

Motion to extend and enlarge an injunction pendente lite. In this suit, by a wife against her husband, for a divorce, a vinculo,the complaint, after setting up the facts constituting

p. 713

the principal subject matter of the action, alleges that the defendant is the owner of certain real estate in this city, of great value, which the plaintiff has reason to believe, and fears, he will, unless restrained, dispose of before final judgment, for the purpose of avoiding the payment of such alimony as may be awarded, and prays for an injunction requiring the defendant to abstain from selling or disposing of the same during the pendency of the suit. This injunction pendente lite was granted. No answer to the complaint has been put in, although the time for answering has expired. Upon affidavits, showing that the plaintiff has in her possession a pair of horses and two. carriages, with which she was furnished by her husband for her own separate use, while they lived together, and which she has so used for a long time, the same being suitable and proper for her to have, considering the wealth of her husband, and the style in which the parties had lived together, and that the defendant is about to take them away from her, the plaintiff now moves that the injunction heretofore granted may be so extended and enlarged as to include those horses and carriages, nuts

Charles A. Rapello and Wm. Curtis Noyes, for the plaintiff.

James M. Smith, for the defendant.

There is no pretense in the moving papers that the defendant’s real estate which is covered by the injunction will not be amply sufficient to secure the payment of such alimony as may be, by final decree, awarded to the plaintiff. It must be assumed, therefore, that such real estate alone is quite sufficient for the security of the plaintiff during the litigation, and that by the final judgment, or otherwise, such property will, if necessary, be charged in such manner as the court may deem fit, for the payment of such alimony as shall be awarded, as was done here in the case of Forrest v. Forrest. The order is not necessary, therefore, for either the present- or ultimate security of the plaintiff.

p. 714

Hor can it be said that the taking of the horses and carriages from the possession of the plaintiff, or depriving her of their use, during the litigation, will, in any manner, “produce injury" to her, or violate her rights, within the intent and meaning in which those terms are employed in the 219 th section of the Code. It is, no doubt, an injury affecting a substantial right that is contemplated.by the section referred to, and nothing else; and, certainly, it cannot be claimed that the plaintiff here has any right, legal or equitable, to the possession or use of the carriages and horses, as against her husband, to whom they belong.

Nor can the claim be sustained that the status of the parties in society and the great wealth of the husband render it fit and proper that the defendant should be compelled by the-order asked for, to continue to furnish the plaintiff with the horses and carriages pending the litigation. Power is conferred upon the court by the 72d section of the statute “ Of Domestic Relations," (2 R. S. 148,) “ to require the husband to pay any sums necessary to énable the wife to carry on the suit, during its pendency,” but I know of no statute nor law which authorizes a judicial tribunal to compel a husband to furnish his wife, before final decree, with a house or furniture, or horses, or any other specific article, except money, in such sums as may be necessary to enable her to carry on the litigation, including, of course, the expenses of her own proper and suitable subsistence. I may add, that even if the power to grant this order as, or as an increase of/an allowance, existed, the propriety of exercising it in this case might well be doubted ; for, an allowance to the wife pending the suit is always much smaller in proportion than a permanent provision after decree; (Lawrence v. Lawrence, 3 Paige, 267;) and, as a general rule, temporary alimony ought to be limited to her actual wants. (Germond v. Germond, 4 Paige, 643.)

The motion must be denied.