People ex rel. Shrady v. Shrady

| New York Court of General Session of the Peace | May 15, 1905

Cowing, J.

This is an appeal from an order of City Magistrate Mayo adjudging defendant a disorderly person for failing to support his wife.

The evidence contained in the return made to this court establishes that the appellant on November 5, 1884, was married to one Georgiana . That thereafter the defendant went to the State of South Dakota and instituted divorce proceedings against his wife, said Georgiana, and on August 4, 1900, obtained a decree of absolute divorce from her.

On August 7, 1900, the defendant returned to Albany, in this State, and married Lillian, the complainant in this proceeding.

Erom the return it appears from the testimony of the complainant that on' or about January 1, 1902, the defendant Ibeat his wife and turned her out of his home and that the only available means she has to support herself is fifteen dollars a month, being less than four dollars a week, and that the defendant has wholly neglected to support and maintain his said wife according to his means.

On the foregoing facts Magistrate Mayo adjudged the defendant guilty of being a disorderly person and ordered him to file a bond in the sum of five hundred and twenty dollars, to pay his said wife Lillian the sum of ten dollars a week for her support for the period of one year.

The appellant seeks to have the order of Magistrate Mayo vacated and set aside upon two grounds:

First. He contends that the divorce which he himself obtained in South Dakota is null and void for the reason that the Dakota court had no jurisdiction of the parties, and that at the time of his marriage to the respondent, he having a wife living, his marriage to her was null and void.

Second. That the evidence is not sufficient to justify the conclusion of the magistrate that the appellant has abandoned the respondent without adequate means of support.

After a careful examination of the evidence, in the return as well as the law applicable thereto, I have come to the conclusion that the appellant is wrong in both of his contentions.

So far as the appellant’s first point is concerned, the Court of Appeals in ’the case of Starbuck v. Starbuck, 173 N.Y. 503" court="NY" date_filed="1903-02-17" href="https://app.midpage.ai/document/starbuck-v--starbuck-3603584?utm_source=webapp" opinion_id="3603584">173 N. Y. 503, has settled the law against him. In this case Justice Haight, in delivering the unanimous opinion of the court, declares the principle to be well established that where a party has invoked the aid of a court and procured a judgment or decree to be entered submitting himself voluntarily to its jurisdiction, he cannot thereafter be heard to question the jurisdiction of the court which entered the judgment or decree in his favor. He may not be heard to impeach a decree or judgment which he himself has procured, to be entered in his own behalf.

So far as the appellant’s second point is concerned, I conclude that the evidence justified the learned magistrate in finding that the appellant has abandoned his wife without adequate means of support. While it does appear that she has a judgment against her husband for something over twenty-three thousand dollars, it also appears that she is unable to collect anything from him on the judgment, and it also appears that there is a piece of real estate which the appellant once deeded to the respondent and subsequently deeded to his mother, and now occupies as his home, and which at present is no source of income to her. I have no doubt if the appellant will pay the respondent the amount of the judgment- which she holds against him, and turn- over to her the real estate which she claims and which he now occupies, she will very gladly consent that the order made by the magistrate be vacated and set aside, but as it is in my judgment the allowance of ten dollars a week provided by the order is just and reasonable and should be paid.

The order of Magistrate Mayo is affirmed.

Order affirmed.