Tisdale v. Rider

104 N.Y.S. 77 | N.Y. App. Div. | 1907

Spring, J.:

The appellant’s counsel impugns the validity of the judgment awarding alimony to the wife on the ground that the husband was not personally served with the summons. Although the judgment recites that it was awarded upon 'the due “ service of the sutwin ons,” we will assume that no jurisdiction was acquired of the defendant in the separation action authorizing the recovery of the . money judgment. The service by publication was sufficient ■ to decree a separation, and the husband was the only person interested in the avoiding of the judgment requiring him to pay the weekly allowance' for the maintenance of his wife, and he never questioned its verity, After the order in the sequestration proceedings and after $400 had-been paid from his property pursuant to that order, he voluntarily joined with his wife in the petition asking the court to set aside both the judgment and order. The request for this remedy was not founded' on their invalidity or on the defective service of the summons- in the separation action, but -upon the assignment, which is noW challenged by the plaintiff. He, therefore, appeared voluntarily recognizing the verity of the judgment, and his general appearance and his submission to the jurisdiction of the court for the purpose of procuring the satisfaction of the judgment and order cured whatever vice there may have been in the incidental part of the judgment charging him with the payment of alimony. (Lynde v. Lynde, 162 N. Y. 405.)

The judgment in the separation action contained the provision that the “ parties may, at any time hereafter by their joint petition, apply to this court to have this judgment modified or discharged.” Pursuant to this authority the parties did appear to secure its discharge upon facts which must have satisfied tlie court that it was advisable and beneficial to the parties interested to vacate the judgment. Had they appeared and asked for a modification of the judgment changing the weekly rate to be paid by Rider, he would . have been effectually foreclosed thereafter from repudiating the judgment for the reason that he was not personally served with process in this State. He could not both recognize and disavow the judgment. Certainly his' judgment creditors would not stand in a better situation than Rider himself to nullify the judgment.

It is contended that the assignment of the bequest must be based on a valuable consideration and none existed. The record shows,' as already stated, that Mrs.' Rider' had no knowledge of the obligations of her husband to the plaintiff, and had no intent to hinder, delay or defraud his creditors in accepting the property assigned to her. . The stipulation is, however, that while the transfer to the wife did not. take all his property, there was not sufficient remaining to pay his debts in full. We will, therefore, assume that she must establish that there was an adequate consideration for the assignment to uphold it. (Starin v. Kelly, 88 N. Y. 418; Wadleigh v. Wadleigh, 111 App. Div. 367.)

We think she has fully met this burden. She was. forty-eight years of age at the time of the transfer to her and her life expectancy was twenty-two and one-half years. She had already received by virtue of the judgment and sequestration proceedings for her maintenance and costs $400. She had a right to believe that the weekly payments would continue to be made for her support as long as the funds lasted, and if she lived out her expectancy the entire legacy would.be paid to her long before she reached'that period. •

We cannot assume for the purpose .of enabling the judgment creditor to deprive her of the benefit of this assignment that the judgment would have been vacated. It' was valid on its face. It had been operative for her benefit and' the husband seemed willing to ratify it. It was a valuable asset to her. T-Ifis judgment and the sequestration order she.permitted to'be canceled as a considerasion for the assignment to her. She did not do this until her husband by uniting with her in the petition acknowledged its validity. The judgment vested a substantial property right in her which became fixed and effective' as a lien upon the bequest by the sequestration order and the appointment of the receiver with the direction to pay her the arrears of alimony and the weekly allowance. (Livingston v. Livingston, 173 N. Y. 377.)

This property right she relinquished, taking other property in its stead. .

The appellant’s counsel urges that the judgment for alimony was not a debt. In Romaine v. Chauncey (129 N. Y. 566], relied upon for this'proposition, a judgment creditor of the wife attempted to reach, alimony allowed to her in a decree dissolving the marriage contract. The debt of the judgment creditor was contracted prior to the granting of the decree. " The court held tliat the allowance • for maintenance was not'a debt amenable to the payment of the obligation created before the alimony was awarded. It further held that the allowance was a continuance of the general duty of the husband to support his wife, ^ changed into a .specific duty over . whiclq not lie, but the court, presides.” Further, if' the judgment creditor were permitted to seize upon the allowance the decree of the court would be perverted and the “ humane intent of the law ” ■ destroyed.

The court did not hold, that the allowance for support was not a property asset and capable of constituting a valuable consideration.

In Wetmore v. Markoe (196 U. S. 68), which is similar' .to other cases, cited on appellant’s brief, the husband, who was chargeable with the payment of alimony by'the decree of divorce, by his discharge in bankruptcy claimed he was releaséd from .the payment for the support of.his wife and children. The. court held that the judgment for alimony was not a provable debt within' the meaning of subdivision a of section 63 of the Bankruptcy Act (30 IT. S. Stat. at Large, 562), and that the • payment of the alimony was merely the performance of a duty imposed upon the husband by law to' provide for his wife and children and such duty would not be .terminated by the discharge in bankruptcy.

It is not important, what name is attached to the judgment directing the husband to pay the specific sum by the week or month to his wife to provide for the sustenance of herself and children. It is an ascertained sum and will purchase commodities and is tangible, and will afford a good consideration for what it represents.

It may be, if the property assigned had been manifestly dispro- - portionate to the" respondent’s interest in the bequest, a court of equity would set aside the transfer on the ground that the transaction was in fraud of the fights of the creditors of the husband. In this case the payment of the $260 annually would in a few years ' consume the entire legacy, so what she surrendered was equivalent to the amount transferred to her.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.