12 A.D. 235 | N.Y. App. Div. | 1896
Lead Opinion
It appears that .on the 12th day of June, 1891, the appellant brought an action against her husband, Edwin A. Thrall, in the Supreme Court, the venue being laid in the county of Kings, to obtain a separation from, her husband upon the ground of cruel and ' inhuman,! treatment. The defendant in said action duly appeared, and such proceedings were had that, on the 31st of July, 1894, an order was made in said action allowing the appellant herein the sum of fifty dollars a week- for her support and maintenance for and during each week from the 12th of May, 1894, until the. final termination of the action or the- further order of the court. An appeal having been taken, this order was modified by providing that the alimony should commence on the 5th of July, 1894. On or about the 2lth of January, 1896, the attorney for the ■ appellant made application to this court, in said action for separation, for an allowance for counsel fee, and such application was granted. On the . 18th of March, 1896, an order was made directing Thrall to pay to the attorney for the appellant the sum of $100 within two days after service of a copy of the order upon said Thrall. In January, 1896, an application was also made in said action for an order directing the defendant to give reasonable security for the payment from time to time of the alimony pendente Hie awarded to the appellant in said action by the aforesaid order of this court, dated .July 31, 1894. On the 30th of January, 1896, Thrall, the defend■.ant in the action for separation, made a general assignment for the benefit of creditors to the respondent herein, Adolph Ludeke. The last-payment of the fifty dollars a week alimony pendente lite, .under said order of July 31, 1891, was made by said Thrall on the 25th of January, 1896. On the 1th of June, 1896, the action for separation was duly discontinued; On the 20th of June, 1896, the appellant presented to said assignee her claim in writing for alimony under said order "of July 31, 1894, from said 25th of January, 1896, to the 6th of June, 1896, the day preceding the discontinuance of the separation action — amounting in the aggregate to the sum of $950, and claimed á preference, and to be entitled to the payment of such amount ;■ and on or about the '21st of May, 1896, the attorney for the appellant presented his claim to said assignee for the $100 -counsel fee ordered .to be paid to the attorney by the order
It is difficult to see upon what basis the appellant can found any claim. It is clear that she has no right to compel the defendant in the divorce suit to pay this alimony, the action having been discontinued. All proceedings to compel the payment of alimony pmdente lite must be taken in the action in which the order for alimony was granted ; and there being no action, the order for the payment of alimony necessarily fell. The appellant certainly can enforce no claim against the defendant in that action for alimony alleged to have accrued during its pendency. And if the appellant has no claim against the defendant in the action for separation, she has none against his estate, because it is only the obligations which have matured, and which are existing at the time of the application,, that can be enforced against the estate. • If proceedings were taken to enforce the collection of this alimony pendente lite against the defendant, the discontinuance of the action would clearly be an answer to such application. All intermediate, preliminary and provisional orders necessarily fell when the .action ceased to exist. It. would have been the same had the complaint been dismissed as to the defendant, in which case it certainly could not be claimed that provisional remedies survive, although judgment had been rendered in favor of the defendant.
It seems to us that, it being clear that the appellant could not enforce the order for the payment of alimony against the defendant in the divorce suit, her application in this proceeding was properly denied, and the order should be affirmed, with ten dollars costs- and disbursements. - ■ -
Williams and- Patterson, JJ., concurred; Ingraham and O’Brien, JJ., dissented.
Dissenting Opinion
The obligations which exist by which a duty devolves upon the husband to support and maintain the wife is not a debt owing by the husband" to the wife. There is nothing in the nature of a promise "by which the husband agrees to pay to the wife a sum of money which .could be the basis of an action against the husband, and" nothing that would justify the court in taking hold of the property, ■of the husband and applying it to the performance of this duty, or-preventing him from applying it in other ways, even though it" would leave him without property with which to perform this duty. 'The obligation, however, exists. - It springs out of the relation crested by the marriage contract necessary for the protection of the" family and for the support and education of the children. This" -duty of support assumed by the husband on his entering into the marriage relation exists from time to time until the marriage tie is ■dissolved. This condition has been recognized by the Court of Appeals of this State in Romaine v. Chauncey (129 N. Y. 570).-We have thus the existence of the duty of support. We then come to the question as to how that duty is to be enforced, for it is obvious that without some proceeding to enforce it, without a method-by which a husband may be compelled to perform the duty, the-fact that the duty existed would, in most cases, be of no possible" advantage to any one. The law provides a method for the ■ 'enforcement of this duty, but the duty exists independent of 'the method of enforcement, and the liability of the husband rests "upon the. existence of the duty and not upon the method by which it may be enforced. Thus, in Romaine v. Chauncey (129 N. Y. 566)' it was said: “ During the marriage the husband owes to the wife" the duty of -support and maintenance although owing her no debt in the legal sense of the word. * * * The divorce with its incidental allowance of alimony simply • continues his duty beyond the decree and- compels him to perform it, but does -not change its mature. The .divorce and consequent separation are wholly his own fault and do not relieve him from the continued performance of the marital obligation of support. The form and measure of the duty ■are indeed changed, but its substance remains unchanged. The •allowance becomes a debt only in the sense that the general duty -over which the husband had a discretionary control has been changed
The court is given specific power by sequestration proceedings to take possession of the husband’s property to enforce its order, or in' the event that such proceedings are ineffectual, under the general equity power of the court, it has authority to adopt such other remedies as would enforce its orders and maintain respect for its procedure. An instance of this is found in the case of Wetmore v. Wetmore (149 N. Y. 528). It seems to me that, tinder this principle established in this, case, upon the entry of the order directing the payment of alimony, the sum of fifty dollars became due from the defendant to the plaintiff each week. That sum of money was the amount which it had been adjudged would be a complete performance by the defendant of his duty to the plaintiff, and when that thus became due, the obligation became fixed, and it did not depend upon the continued existence of the order which had fixed that sum as the amount which would discharge and satisfy the duty of the husband to the wife.. Each week, therefore, there arose an obligation on behali of the husband to pay to the wife fifty dollars, and upon each succeeding week a new" obligation to pay the fifty dollars arose which continued as long as .the order remained a binding adjudication upon the parties- When this motion was made, therefore, I think there existed an obligation on the part of the husband to pay to the wife the amount directed to be paid by the order, and that the subsequent discontinuance of the action, by which the order fell, did not revoke, satisfy or discharge this obligation. We have then an obligation on the part of the husband to pay to the wife this sum of money, and we have an assignment made by the husband of his property to an assignee, in trust, to pay the debts of the husband,
I think, therefore, that the order should be reversed, and the motion granted.
O’Brien, J., concurred.
Order affirmed, with ten dollars costs and disbursements.