Hoffmire v. Hoffmire

3 Edw. Ch. 173, 1837 N.Y. LEXIS 221, 1837 N.Y. Misc. LEXIS 21

• Court: New York Court of Chancery
• Decided: November 6, 1837
• Status: Published

Opinion

The Vice-Chancellor :

The irregularity of the proceedings, anterior to the taking the bill as confessed, was waived by the consent of the defendant’s solicitor to the order pro confesso and to the order of reference and by the solicitor’s appearance on behalf of the defendant, before the master, upon the reference to take proofs.

This solicitor undertook to appear for the defendant; and if it were without authority and the latter be injured, then he must seek redress against such solicitor. It is not ground enough to set aside the proceedings. The situation of the matter might be different provided the unauthorized appearance was obtained by the connivance or through the procurement of the complainant; but this is not pretended, nor does any thing appear against her. The proceedings cannot be disturbed for irregularity.

Then, with respect to the merits. The defendant admits he has been guilty of adultery; but claims, by way of defence or bar, the benefit of a condonation on account of subsequent cohabitation. The complainant, however, denies her knowledge of it; although it is evident she entertained strong suspicions of his infidelity at a time when she continued to cohabit with him. However, I consider the defendant’s after-misconduct, which caused him to be convicted of a felony and sentenced to the state prison, operated as an abandonment of his duty towards his wife; he thus, by his own act, put it out of his own power to provide for her; it was—so far as she was concerned and so far as her domestic happiness went, the reverse of conjugal kindness. In the case of Johnson v. Johnson, (1 Edwards’s Ch. R. 439,) I had the question of condo-nation before me ; and I considered that cruel treatment after condonation would revive a claim for divorce a vinculo matrimonii. This case went to the chancellor; and then, to the court of errors : 14 Wend. 637. The opinion of Chief Justice Savage fully sustains the'doctrine I put forth; but from a note which the reporter has added to the case, it would seem that the question may still be considered as an open one. I am inclined to stand by my opinion, confirmed, as it is, by the chief justice. In the present case, the husband, after the suggested forgiveness, disgraces himself and his family by committing a felony, and he is sentenced to three years imprisonment. I have a right to consider it a lawful sentence. I shall hold this conduct of his a revival of her cause of suit and as destroying the supposed condonation.

The motion is denied, with costs.