Mix v. Mix

1 Johns. Ch. 108, 1814 N.Y. LEXIS 211, 1814 N.Y. Misc. LEXIS 21

Opinion

The Chancellor.

The statute gives this court jurisdiction over divorces, a vinculo matrimonii, for adultery, and over divorces, a mensa et thoro, for cruelty, only in the case of parties of a certain designation and description.

(a) (2 N. R. L. 197. s. 1 and 10.) Whether this be one of those cases in which the court is authorized to interfere and sustain the inquiry, remains yet to be ascertained. As the defendant has put in a demurrer to the bill, it would seem to be premature to make any order touching the maintenance of the wife, founded on the main subject matter of the bill, until the demurrer is disposed of. Perhaps, the court has no cognizance of the case, for the purpose of divorce. The bill goes for a dissolution of the marriage, on the charge of adultery, and in such cases the decree of divorce, under the statute, precedes a further decree or order for an allowance to the wife. But if no divorce can, or ought to be decreed, perhaps the bill may be sustained for alimony. The statute declares, “ that whether the court shall decree a separation from bed and board, or not, it may make such order and decree, for the suitable support and maintenance of the wife and children, or any of them, by the husband, or out of his property, as the nature of the case may require.” The petition states a case requiring immediate relief, as to support, and the existence of the relation of husband and wife must be deemed to be admitted. Though it would appear, from some of the cases referred to, and particularly those in Oughton and Dickens, that the courts, after the fact of the marriage is admitted, do allow to the wife a sum for carrying on the suit, as well as for intermediate alimony, and though I rather apprehend that this is a general rule, and applies whether the wife is plaintiff or defendant, in a suit with the husband, (Fournel's Traite de l'Adultere, 365.,) yet I do no not think I ought to go so far in this case, when even the jurisdiction of the court, over thé question of divorce, remains unsettled. The plaintiff ought to set down her cause for hearing, upon the demurrer.

I am willing, for the present, and under the circumstances of this c^se, to direct a monthly allowance of 30 dollars to the plaintiff, to be computed from the 20th inst., (being the date of the petition,) and to be paid monthly by the defendant, to the plaintiff herself, or to the register, or assistant register, of this court, for her use; and that this allowance continue until the further order of the court.

Rule accordingly.

The first section of the act makes it lawful, in cases where adultery is committed by husband or wife, u they being the inhabitants of this state at the time of committing such adultery, or when the marriage shall have been solemnized, or taken place within this state, and the party injured an actual resident in this state, at the time the adultery is committed, and at the time of exhibiting the bill, to exhibit a bill for a divorce,” &c., a vinculo, &c. And the 10th section provides, in the like circumstances, in case of cruelty and inhuman treatment*, that a bill may be exhibited for a divorce, a mensa &c.