Citation Numbers: 109 N.Y.S. 637
Judges: Mills
Filed Date: 2/15/1908
Status: Precedential
Modified Date: 10/17/2022
This is an action for separation brought by wife against husband. The defendant now makes two motions—the one to vacate or modify, by reducing the amount, the provision for temporary alimony contained in an order made at Special Term December 28th last, and the other to strike out from the amended complaint certain allegations, or for other relief respecting the same, such as a bill of particulars.
The following appear to be the material facts in the matter: The order granting temporary alimony at the rate of $150 a month contains the following provision:
“And it is further ordered that the above alimony is allowed on condition that the plaintiff try the issues herein and accept short notice of trial, and, in the event of plaintiff’s failure so to do, defendant may apply without prejudice for modification of this order.”
As to the first ground, it does not seem to me that the delay in the trial has been at all the fault of the plaintiff. The action was brought to trial very speedily indeed. The delay was then occasioned by the insistence of defendant’s counsel (1) upon the technical objection that the complaint should have alleged that the parties had been residents of this state for one year, and not merely, as it did, that they were residents thereof now—i. e., at the commencement of the action—and (2) that the complaint must be treated as based upon the alleged abandonment of the plaintiff by the defendant in New Jersey in 1892. As to the first, if it be clear that the objection was well taken technically, and that the allegation of present residence of both parties within the state was not sufficient under subdivision 1 of section 1763 of the Code of Civil Procedure, it is plain that the defect could have been remedied by an amendment then and there made, and the trial proceeded with without delay. As to the second objection, I do not think that it was well taken. As I view the original complaint, it was not at all based upon the alleged abandonment in New Jersey, but was based upon the claim' that the defendant many years before abandoned the plaintiff without proper cause; that thereafter, up to September last, the plaintiff had supported herself, but had then, through illness, become unable longer to support herself; and that she had, in that month, applied to the defendant for support, which he had refused to give, ex
As to the merits of the claim for alimony and the propriety of the amount allowed, the justice holding the motion at Special Term, after fully hearing the same, passed upon those matters, and made and fixed the allowance in the expectation, doubtless, that a speedy trial of the issues might be had; and I perceive no ground to modify his conclusions so long as the plaintiff stands ready to have the case speedily tried. The motion as to alimony is therefore denied, upon condition that plaintiff accept short notice of trial for any Dutchess Term of this court in March or April next, at which the case can be tried.
As to the other motion, to strike out certain allegations of the amended complaint, it is clear that that complaint contains matter useless in setting forth what appears to me to be the real cause of action of the plaintiff as above indicated. It is evident that there is no purpose on the part of either party to live together, and therefore that there is no need for the plaintiff to account for their now living apart upon any other ground than the original abandonment. The defendant’s duty as husband, to support his wife, is a continuing one, and was not discharged or ended by the fact that for 15 years after the abandonment she supported herself and did not call upon him for support. When, in September last, she made such demand of him and he refused it without just reason, if such be the case, her cause of action for neglect or refusal to support immediately arose. All in the amended complaint which does not aid in setting forth this cause of action seems unnecessary. Judged by this standard the following allegations of the amended complaint should be stricken out, viz., “Sixth,” “Tenth,” “Eleventh,” and “Twelfth.” The other allegations, while not all of them perhaps scientifically drawn, appear, to some extent at least, to aid in setting forth what I consider to be the plaintiff’s real claim as, to her cause of action.
The motion to strike out, therefore, is granted to the extent above indicated.