4 Lans. 473 | N.Y. Sup. Ct. | 1871
The questions as to the appeal from the order granting alimony, and from the order, as made by the judge, instead of by the referee, are decided by the Court of Appeals in Forrest v. Forrest, (25 N. Y. 501.) As to the first question, it was decided that the general term could not only entertain the appeal, but might order a reference to ascertain the suitable amount to be allowed. As to the second, the court say: “ The object of tfie reference, and the report of the referee, is to inform the conscience of the court; but- it is the court, not the referee, who adjudges the question as to what is a suitable allowance. Hence, there can be no available exception to the report of the referee, or to his admission or rejection of evidence.”. ■
The order appealed from was erroneous in directing the payment of arrears of alimony. The plaintiff should have been left to enforce the payment of the alimony 'in the ordinary way. . Such was the decision of the general term of this district, in Hoffman v. Hoffman, (55 Barb. 269.)
I do not think the evidence on the part of the plaintiff warranted the conclusion that the defendant’s property was worth $52,000. The only proof is that some one, not named, would give $40,000 for the Eighth avenue property, and when the defendant agreed to accept that price, instead of a tender of a proper contract, he was asked to sign one in blank. This he properly refused, and the whole evidence is hardly sufficient to overcome the evidence offered on the part of the defendant, that the value of that property was much' less.
The same difficulty occurs as to the proof relating to his debts. The defendant swears that the amount exceeds $26,000. Although there may be some suspicion as to one or two of the claims, still there is no evidence to contradict him in regard to any of them. In the absence of such .proof, it can hardly be just to the party to fix the alimony on the supposition that he had sworn falsely, without any evidence to prove .his statements untrue.
The value of the property, as found by the referee, was $38,800, and the indebtedness was $26,250; this would leave, as the amount of his property, $12,550, and would not warrant alimony to the extent of the order.
The amount. originally fixed by the order of Judge Barnard, was quite as much as should have been allowed. If the plaintiff will stipulate to accept that sum, $600 annually, the order may be so modified. If not, the order is o vacated, and the case sent back to the referee for such further evidence as to the value of the defendant’s' estate as may be offered by the parties.
Ingraham, P. J,, and Geo. G. Barnard, Justice.]
