Perry v. Perry

2 Barb. Ch. 285, 1847 N.Y. LEXIS 290

• Court: New York Court of Chancery
• Decided: April 6, 1847
• Status: Published

Opinion

The Chancellor.

Even if the defendant was in a situation to ask for an increase of alimony, or for a further allowance for costs, the papers in opposition to this application show tnat it would be improper to grant it. It is perfectly evident that the whole story of the defendant as to the loss of the money, drawn from the savings bank, is a fiction. And there is'also reason to fear that some witnesses who have made affidavits in behalf of the defendant, have been suborned to commit perjury in support of this application ; for the mere purpose of wounding the feelings and traducing the character of the complainant. I allude particularly to the affidavits of the persons who have been induced to swear that it was the general report in the neighborhood where the complainant formerly lived, that he killed his first wife by cruel treatment. Independent of the degraded character of the deponents, it is wholly incredible that the complainant should have had the reputation of such cruelty to his first wife, and that her numerous relatives and friends who lived in the same neighborhood should never have heard of it. I have very little doubt, therefore, that the witnesses who have sworn to this general report in the neighborhood, have been induced to swear to what they knew to be false. The affidavits in relation to the depositions of J. B. Rowley and of Margaret Gantz, render it also probable that other depositions may have been obtained in the same way; and that the deponents have been made to swear to many things which they did not suppose were contained in the ex parte affidavits which purport to have been made by them.

But what is conclusive against this application- is the fact that the defendant has suffered the bill to be taken as confessed against her. And for the purposes of this suit, so far as relates to alimony or to an allowance for the expenses of her defence, the charges in the bill are to be taken as true. The reference, therefore, is only to satisfy the conscience of the court that there is no collusion between the parties; and not to protect the rights of the defendant. And even if the complainant should fail to establish by legal evidence, the facts charged in the bill, the defendant will not be entitled to a decree for costs, upon a dismissal of the bill, under such circumstances. It is not sufficient, in this stage of the suit, for the defendant to make an affidavit that all the material charges in the bill are farse; without stating what she considers material, and what is immaterial hi her view of the case. The proper time to deny the truth of the charges was when she had the right of putting in her answer on oath,as she was required tódoby the orderofthecdurt; if she had any defence to malte to the súitV Had she done that, the Court would-have Seen wh&t statements in the bill she roéañt to swear were false,- and what- she'adniittéd-tobfe'trúé; And shb would have béen in'a situation to be liablé'toa' prosecution for perjury, if her answer could be proved by two or more competent witnesses to be false in any material part thereof.

Upon a reference of this kind, where the defendant admits the charges in the bill to be true, either by.answer or by suffering the bill to be taken as confessed for want of an answer, the court allows the defendant to appear and cross-examine the witnesses produced by -the complainant, .and to produce witnesses to disprove the charges in'the bill, for "the mere "purpose of eliciting the truth, to aid the conscience of the court; and not for the purpose of protecting any rights of the defendant. For the rights of the defendant are the same upon a reference, where the charges in the bill are-all admitted in the answer, as where they are admitted by neglecting to answer. If the defendant, therefore, thinks proper to attend upon the reference and cross-examine the witnesses of the complainant, or to produce evidence on her part, she is at liberty to do so. But it must be at her own expense, and not at the expense of her husband; for, as between the complainant and defendant as parties, she has admitted the charges made against her. And the master is not bound to take the testimony for her without compensation. For these - reasons^ this application must be denied.

The complainant’s counsel ask for an order that the costs be paid by the néW solicitor for the defendant; who makes this-, application for- her. But it would be improper to charge- bjrpj personally with costs,-without giving him an opportunity to ¡he-heard in reference to-the affidavits which are readag-ainStrhim on that motion. The court, hóWeve'r, has the power, tp,charge the costs upon the defendant, who has improperly made'- this application for the mere purpose of harassing the complainant, and putting him to further expense and costs;. The complainant is at liberty, therefore, if he thinks proper to do so,-to .retain the taxable costs of opposing this motion, out of the allowance heretofore directed to be paid to the defendant for alimony-pending the suit. There is the more reason for doing this, as it appears that she has kept the money heretofore paid to her for alimony; and has suffered him to be sued for her support.