155 N.Y.S. 625 | N.Y. App. Div. | 1915
Concurrence Opinion
In or about the year 1903 the plaintiff and the defendant married and they resided together until the year 1906, when the plaintiff left the defendant, taking their two children, now of the ages of fourteen and twelve years respectively, with her, and she has ever since resided separate and apart from the defendant.
This action is brought to; recover tfie sum of $3,350, which
The warrant of attachment is for the entire amount and it has been levied upon all defendant’s bank accounts, some of which relate to his business conducted for the insurance company by which he is employed, and it has also been levied upon moneys owing to him.
In the year 1912 the defendant obtained a decree of divorce against the plaintiff in Pennsylvania and remarried, and in July, 1915, was residing in this State with the woman he married after obtaining the divorce from the plaintiff. In the summer of 1915 the plaintiff brought an action against the defendant for divorce on account of his relations with the woman he married after obtaining the Pennsylvania divorce, and on the 6th day of July, 1915, she caused moving papers on an application for alimony and counsel fee to be served in that action returnable on the nineteenth of the same month. On the 17th or 20th of July, 1915, and before that motion was decided, this action was commenced.
The plaintiff alleges, that when she separated from the defendant on the 1st day of September, 1906, she was obliged to leave him on account of the cruel and inhuman manner in which he treated her and the children, “and-because of his drunkenness and because of his conduct towards the plaintiff, which conduct was such as to render it unsafe and improper for the plaintiff to cohabit with the defendant.” The plaintiff’s affidavit used on the application for the warrant of attachment is no more definite with respect to the facts upon which she bases her cause of action than the allegations of the complaint, and no other facts appear in the record tending to justify the plaintiff in leaving- her husband. The complaint and affidavit .used on the application for the warrant--of attachment' charge in-general- language that the defendant failed to provide for the support of his wife and children,- and that she -was- -.unable -to obtain credit on his
In De Brauwere v. De Brauwere (203 N. Y. 460) it was held that a wife whose husband had abandoned her may maintain an action against him or his estate to recover the amount expended ' by her from her separate estate or earnings for her maintenance and support. In that case there had been an order requiring the husband to pay a fixed amount for the support of his wife, but, as I understand the decision, it was not placed upon that ground. It is claimed that that authority is not controlling, for the reason that here the plaintiff left her husband, and it is argued, in effect, that in such case the husband is not liable for the support of the wife until by some judicial proceeding it is determined that she was justified in leaving him. I find no" basis for this distinction, either in the statutory law of the State or in the decisions of the courts. If the defendant was guilty of such conduct as would entitle his wife to maintain an action for separation, she was justified in leaving him. She would then have been justified in living separate and apart from her husband, and his duty to provide her and their children with necessaries for board and clothing would continue precisely the same as if they were living together. (Hatch v. Leonard, 165 N. Y.
I am, therefore, of opinion that the order should be reversed, and motion to vacate the warrant of attachment granted, but without costs.
Order reversed and motion granted, without costs.
Lead Opinion
A warrant of attachment in this action was granted on the ground that the defendant had assigned, disposed of and secreted his property, or was about to assign, dispose of or secrete the balance of his property with intent to defraud his creditors.
Assuming that the plaintiff had made out a prima facie case to justify the issue of a warrant of attachment in the first instance, the facts that would justify this conclusion have been fully met and answered by the defendant’s affidavits, and on the whole case there seems to be a lack of evidence to justify a finding that the defendant either has transferred or assigned or is about to transfer or assign his property to avoid his creditors. The defendant is a resident of this State, and tying up all of his property to await the determination of this action is not justified unless there is substantial evidence that the defendant is about to make some disposition of his property for the purpose of defrauding his creditors. There is no evidence that he has other debts; his business is here; and nothing that he has done will justify the inference that he is about to make such a disposition of his property as will justify an attachment.
For these reasons I think the order appealed from should be reversed, and motion to vacate the attachment granted, under the circumstances, without costs.
Clarke and Scott, JJ., concurred; Dowling, J., dissented.