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of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff; and the complaint containing such averments be verified by the oath of the plaintiff in the manner prescribed by the 157th section of the code, judgment shall not be rendered for the relief demanded until the plaintiff's affidavit be produced stating the above facts.

a. Divorce.—The fact that a man represented himself as a widower, he being in fact a divorced husband, is not a ground for a divorce (Clarke v. Clarke, 11 Abb. 228).

b. As to proceedings in action for divorce, see opinion of Hon. Murray Hoffman, as referee, published 17 Abb. 48. Venue of action, see Vence v. Vence, 15 How. 497; id. 576, note. After a decree for a limited divorce in a court of a foreign State, which remains in force, the plaintiff in that action cannot maintain an action for an absolute divorce in a court in this State (Coddington v. Coddington, 10 Abb. 450). A decree for divorce in a foreign State, where the foreign court is shown not to have had jurisdiction of the defendant, is not a bar to an action for a divorce in a court in this State (McGiffert v. McGiffert, 31 Barb. 69).

c. Pleadings.-In an action for divorce on the ground of adultery the charge should be stated in the complaint with such definiteness and certainty as will be sufficient to enable the defendant to know what he will be required to meet by proof on the trial. Hence the name of the person with whom, the place where, and the time when the adultery was committed, should be set forth in the complaint. This rule, however, though general, is not universal. It is subject to modification to any extent to meet the exigences of each particular case, provided the above principle is not infringed (Pramagiori v. Pramagiori, 7 Rob. 302).

d. Where a complaint alleged that the defendant had committed several acts of adultery with one S. R, which acts were committed at the plaintiff's residence in Broome street, and at a house of ill fame in Spring street, and at divers other times and places in said city,-held, that the allegation “at divers other times and places in said city" was insufficient to enable the defendant to prepare to meet it at the trial; and that with respect to the allegation of adulteries in Spring street, there was no reason why the general rule should not be complied with and the number of the house or at least the block on which it was situated, be given (id.)

e In an action for a divorce on the ground of adultery, an order of refer ence on the default of the defendant to answer will not be made where the complaint contains no specification of the person with whom, or the place where, the offense was committed (Hyde v. Hyde, 4 Sand. 622). An allegation that the defendant in November, 1851, committed the offense in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff, will not suffice (ib.) If the person be unknown, the complaint should state particularly the place where the offense occurred, as at a house specified, or the like (ib.)

f. Where the complaint in an action for divorce demands judgment for a separation from bed and board forever, without asking any other relief or for relief generally, and the allegations of the complaint are not such as entitle the plaintiff to the relief demanded, but are such as would entitle the plaintiff on a proper prayer to a judgment declaring the marriage contract void; on demurrer that the complaint did not state facts sufficient to constitute a cause of action, held that the complaint was sufficient (Walton v. Walton, 27 How. 600; rev'g 32 Barb. 203).

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a. In an action for a limited divorce for cruelty, the plaintiff could not also complain for adultery, and ask a decree dissolving the marriage contract, if the adultery should be proved (see Smith v. Smith, 4 Paige, 92).

b. A complaint, in an action for a separation from bed and board, which does not specify particularly the circumstances relied upon, with dates and places with reasonable certainty, is bad on demurrer (Anon. 11 Abb. 231; and see Hyde v. Hyde, 4 Sand. 622).

c. In an action for an absolute divorce for adultery, the complaint should allege that the discovery of the plaintiff's criminality took place within a certain time before the commencement of the action (Zorkowski v. Zorkowski, 3 Rob. 613; 27 How. 37). An error in the date may be disregarded (id.)

d. An allegation in the complaint that five years had not elapsed since the plaintiff discovered the fact that such adultery had been committed without his consent, connivance, or procurement,-held not in compliance with this rule (Myers v. Myers, 41 Barb. 114).

e. A complaint to have a marriage declared void charged that when defendant married plaintiff, she, defendant, had a husband living; that she represented to plaintiff she had procured a divorce from such former husband, but the fact was, such divorce was fraudulent and void,-held that such divorce was binding on the parties and that no cause of action was shown (Kinnier V. Kinnier, 3 Abb. N. S. 425; 53 Barb. 454).

f. Where the first four paragraphs of a complaint by a husband averred the marriage of the parties and birth of a child, and that defendant abandoned plaintiff, and the fifth paragraph "for a further cause of action" averred the adultery of the defendant,-held that the complaint really contained but one cause of action and was not demurrable (Ward v. Ward, 5 Abb. N. S. 145). g. Reference.—Where the defendant appears and answers, the reference should be "to hear and determine;" where the defendant does not answer, the reference should be to take proof and report (Lincoln v. Lincoln, 6 Rob. 525; see Simmons v. Simmons, 3 Rob. 642; Diddell v. Diddell, 3 Abb. 167; Hyde v. Hyde, 4 Sand. 622).

h. Condonation.-In an action for separation on the ground of cruel and inhuman treatment, the continuance of cohabitation by the parties for a limited time after the last act of cruelty, is not as in an action for divorce, conclusive of the fact of condonation (Reynolds v. Reynolds, 34 How. 346; 1 Trans.. App. 103; 3 Keyes, 368; see Betz v. Betz, 29 How. 90).

¿. Motion.—A motion for alimony may be made on affidavits alone, and before a copy of the complaint has been served. But in such case the affidavits must allege, in substance, all the facts necessary to make a good complaint (Whitney v. Whitney, 22 How. 175).

j. Reference as to alimony.-Upon a reference to inquire and ascertain the amount which should be allowed to a wife for maintaining a suit for divorce, and for support of herself and her child meanwhile, it is not necessary that she prove her case upon the merits; and proof of her misconduct is admissible only to show, that it was so glaring that no aid should be given her to prosecute the suit (Fowler v. Fowler, 4 Abb. 411). On a motion as to alimony, pending the action, the referee is not to consider the question whether the parties were ever married (Herforth v. Herforth, 2 Abb. Ñ. S. 483). The proceedings on a reference to settle the amount of alimony may be reviewed on the report and without making any formal case (Forrest v. Forrest, 5 Bosw. 672).

k. Alimony.—Counsel fee, in what cases.-It is not a matter of course to grant alimony (Boubon v. Boubon, 3 Rob. 715). Where, on the motion of a plaintiff's wife for alimony, the papers present a case of serious doubt of her ultimate success, the motion will be denied (Carpenter v. Carpenter, 19 How. 539).

7. Where the action is to have a marriage declared void for the reason that at the time of such marriage the defendant had a husband living, if she admits that fact, she cannot be allowed alimony (Appleton v. Warner, 51 Barb. 270)

a. The granting alimony is always incidental to affirmative relief of some kind; and, therefore, where, in an action by a wife for a separation, she fails to make out a cause of action for a separation, a decree cannot be entered for a stated allowance (Atwater v. Atwater, 36 How. 431; 53 Barb. 621).

b. A wife who, without any assigned cause, quits the home provided for her by her husband and goes to live elsewhere, without offering to return, has no right to alimony (Boubon v. Boubon, 3 Rob. 715).

c. Mere allegations of abandonment generally and of a neglect or refusal to support, are not sufficient to grant alimony, where they are denied. The applicant is bound to set forth the facts which constitute the supposed abandonment and present a meritorious cause of action (Boubon v. Boubon, 3 Rob. 715; Solomon v. Solomon, id. 669).

d. Alimony and allowance for defense will not be granted to a wife who is shown to be living in open adultery, although she may by her answer deny the adultery charged in the complaint (Griffin v. Griffin, 23 How. 189; 21 How. 364).

e. Poverty of the husband is not of itself an answer to an application for alimony (Hallock v. Hallock, 4 How. 160; Hoffman v. Hoffman, 7 Rob. 474).

f. Where the wife is the defendant in a bill filed by her husband, for a divorce on the ground of adultery, she is entitled to the means of defense as well as of support during the pendency of the suit. And, unless she has means of her own, the husband may be ordered to furnish her the means of obtaining a fair and impartial trial, as well as providing for her subsistence. Before final decree, however, the court should interfere with the husband's property with great caution, and deal it out to the wife much more sparingly than it would be proper to do after the termination of the suit. And if the wife has sufficient property in her hands to defray the expenses of the suit, and to support herself pending the litigation, the husband should not be ordered personally to advance any thing more until that property shall be exhausted (Morrell v. Morrell, 2 Barb. 480; Hoffman v. Hoffman, 7 Rob. 474).

g. Where, pending an action in a foreign State by the husband for divorce, the wife commenced an action for divorce in this State, it not appearing that by the law of such foreign State a divorce could be granted to the defendant in the action in that State,-held that the pendency of the suit in the foreign State was not a reason for denying alimony to the plaintiff in her suit in this State (Whitney v. Whitney, 22 How. 175).

h. Where the wife has a judgment in her favor for a separation from bed and board forever, and in which judgment she is allowed a sum in gross, declared to be in full satisfaction for her support and all alimony, such judgment is a bar to the wife's claim for alimony in an action by the husband for a divorce on the ground of adultery, but it is not a bar to her claim for an allowance to defend the action (McDonough v. McDonough, 26 How. 193).

i. In an action against a wife for a divorce on the ground of adultery, neither counsel fees nor alimony will be allowed the defendant upon a mere recriminatory charge of adultery, made in the answer in general terms and on information and belief (Clark v. Clark, 7 Rob. 284). But where she swears positively to an affirmative defense she should, as a general rule, be allowed counsel fees and alimony (id.); Strong v. Strong, 5 Abb. 612; Hallock v. Hallock, 4 How. 160). After a trial, in which the jury disagree, a wife defendant need not, to entitle her to alimony and counsel fee, verify by her oath the recriminatory charges in her answer, nor allege her innocence of the charges against her (Strong v. Strong, 5 Rob. 612).

j. Where, in an action by a wife against her husband for a divorce on the ground of adultery, the charges are all made on information and belief, without any affidavit in support thereof, if the defendant positively denies the charges, an order for alimony will not be granted (Monk v. Monk, 7 Rob. 153). k. Amount of alimony.—In actions for divorce it is not necessary nor proper to submit the question of alimony to the jury. The allowance of alimony, its amount and the time when payment of it shall commence, are

within the discretion of the court, and any order in regard to it is subject to modification from time to time (Forrest v. Forrest, 3 Abb. 144; 5 Bosw. 672; 25 N. Y. 501). As a general rule alimony pendente lite ought to be limited to the actual wants of the wife (Simmons v. Simmons, 2 Rob. 712; see Leslie v. Leslie, 6 Abb. N. S. 193).

a. Conditional order.-The court will not usually make it a condition of allowing alimony and counsel fee that the defendant consent to a reference of the issues in the action (Strong v. Strong, 5 Rob. 612). The courts cannot require a wife to release her right to dower (Crane v. Crane, 36 Barb. 410; Forrest v. Forrest, 25 N. Y. 501; 3 Abb. 144).

b. Appeal.—An appeal lies to the general term from an order granting alimony (Leslie v. Leslie, 6 Abb. N. S. 193; but see Forrest v. Forrest, 3 Abb. 144; 5 Bosw. 672; Griffin v. Griffin, 23 How. 189; McDonough v. McDonough, 26 How. 193; Moncrief v Moncrief, 10 Abb. 315).

c. Continuance of alimony.—The rule as to payment of alimony is, that the same is to be paid up to the entry of the final judgment, even if the decision on the trial is adverse to the wife (Moncrief v. Moncrief, 15 Abb. 187). In case of an appeal by the wife from the judgment, the order for alimony does not continue, but a motion may be made to continue the alimony (id.)

d. Revoking order for alimony.-The delay of the wife in prosecuting her suit, will be a ground for discontinuing the allowance (Fowler v. Fowler, 4 Abb. 411). Revoking alimony for misconduct of wife after decree (see Forrest v. Forrest, 9 Abb. 280).

e. Nonpayment of alimony.-Upon failure to comply with an order for payment of alimony, a precept may issue, in the form to entitle the prisoner to jail limits (Ward v. Ward, 6 Abb. N. S. 79). Where one is imprisoned for the nonpayment of alimony, he can be relieved from imprisonment only under the provisions of the revised statutes (2 R. S. 538) relating to proceedings for contempts in civil actions (Graley v. Graley, 5 Rob. 641; 31 How. 475).

f. Wife's costs.-Where the plaintiff's wife is defeated in her action the husband is not liable to her attorneys for the costs of prosecuting the action (Shelton v. Pendleton, 18 Conn. R. 417; Wing v. Hurlbut, 15 Verm. R. 607; Dorsey v. Goodenow, Wright's (Ohio) R. 120). And where, pending a suit by a wife for divorce, she and her husband become reconciled and settle the action, the husband is not liable to the attorneys of the wife, for the costs (Phillips v. Simmons, 20 How. 342; 11 Abb. 287).

g. Proof of marriage and residence.-In actions for divorce, proof of marriage and the residence of the parties is as material as proof of the adultery (9 Paige, 589; 7 ib. 589; 3 Edw. Ch. R. 377; 8 How. 298).

h. Marriage in a foreign country how proved (Winslow v. Winslow, 6 Abb.


i. Proof of adultery.-Where, in an action by a husband for divorce, the evidence of adultery rests on the unsupported testimony of the defendant's paramour, the case will be sent back to the referee for further evidence (Anon. 5 Rob 611).

j. Cruel and inhuman treatment.-What amounts to cruel and inhuman treatment justifying a limited divorce (Bihin v. Bihin, 17 Abb. 20; Conklin v. Conklin, 17 Abb. 20, note; P. v. P. 24 How. 197; Davies v. Davies, 37 How. 45).

k. Judgment on referee's report.-Judgment may be entered on the report of a referee, in an action for a limited divorce, without any application to the court to confirm the report (Bihin v. Bihin, 17 Abb. 21). A referee, appointed to hear and determine an action for a limited divorce, may provide in his decision for the allowance to the wife for maintenance (Bihin v. Bihin, 17 Abb. 21).

1. Judgment.-On a complaint demanding a separation from bed and board, there being no answer, a decree declaring the marriage contract void is unauthorized (Anon. 11 Abb. 231).

a. New trial. The power given by statute (2 R. S. 145, § 40) to the court in actions for divorce, on the ground of adultery, when the offense is denied by answer, to award a new or further trial of such issue, as often as justice shall seem to require, is confined to issues made by the pleadings, of the adultery charged and does not extend to other issues in the action (Amory v. Amory, 6 Rob. 514; 33 How. 490; 3 Abb. N. S. 16).

b. Vacating judgment.—A judgment of divorce may be vacated for irregularity, affecting the jurisdiction of the person, even after the prevailing party has married again, but this will be done with caution (Wortman v. Wortman, 17 Abb. 66; and see Singer v. Singer, 17 Abb. 66, note; 41 Barb. 139).

c. Appeal.-An order, denying a motion for leave to come in and answer after judgment taken for want of an answer, is appealable (McGuin v. Cace, 9 Abb. 160). Order, setting aside a decree of divorce taken as confessed and allowing alimony, is not appealable to the court of appeals (Carpenter v. Carpenter, 4 How. 139).

RULE 87.-Reference in suit to annul marriage.


To obtain an order of reference, if the complaint seeks to annul a marriage on the ground that the party was under the age of legal consent, an affidavit must be produced showing that the parties thereto have not freely cohabited for any time as husband and wife, after the plaintiff had attained the age of consent. the complaint seeks to annul the marriage on the ground that the plaintiff's consent was obtained by force or fraud, the plaintiff must show by affidavit that there has been no voluntary cohabitation between the parties as man and wife; and, if it seeks to annul a marriage on the ground that the plaintiff was a lunatic, an affidavit must be produced showing that the lunacy still continues, or the plaintiff must show, by his affidavit, that the parties have not cohabited as husband and wife after the plaintiff was restored to his reason.

RULE 88.—Plaintiff may be examined on reference.

On a reference to take proof of the facts charged in a complaint for separation, or limited divorce, the examination of the plaintiff on oath may be taken, as to any cruel or inhuman treatment, alleged in the complaint, which took place when no witnesses were present who were competent to testify to the facts on such refer


See ante, p. 613, a.

RULE 89.-Defense in action for divorce, &c.

The defendant, in the answer, may set up the adultery of the plaintiff, or any other matter which would be a bar to a divorce, separation, or the annulling of a marriage contract; and, if an issue is taken thereon, it shall be tried at the same time, and in the same manner, as other issues of fact in the cause.

d. Where the answer sets up the adultery of the plaintiff, the charge must

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