Bissell v. Bissell

1 Barb. 430, 3 How. Pr. 242

• Court: New York Supreme Court
• Decided: December 7, 1847
• Status: Published

Opinion

Harris, J.

The granting of an allowance to the wife for alimony and expenses, in suits for divorce, or for a separation, is in the discretion of the court. But the rules which govern, the court in the exercise of that discretion are very different in the two cases. If the bill is filed for a divorce, the wife is entitled of course to the allowance, unless there is an undenied charge of adultery against her. But when the bill is filed by the wife for a separation, it is so far from being a matter of course to allow alimony and expenses, that it must at least appear that the plaintiff had good ground for bringing the suit.

In this case, the answer of the defendant was put in on oath, although an answer on oath was waived by the bill. The answer denies, or explains, all the acts of unkindness "and improper treatment set forth in the bill, in such a manner as to leave a strong impression upon the mind that the husband is the more injured party. And as the answer is entitled to the same force, as evidence, as the bill, the court cannot, upon the bill and answer merely, decide that the plaintiff has a meritorious cause of action. The motion must therefore be denied.

A motion is also made by the plaintiff to have issues settled for the trial of the question involved in this cause. There can be no objection to a reference to some suitable person for that purpose; or if it is preferred, the cause may be referred to some suitable person as referee, to hear the proofs and allegations of the parties, and determine the matters in controversy, and report thereon to this court.