
    Ober v. Ober.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Divorce—Counsel Fees—Second Action.
    Counsel fees will not be allowed a plaintiff who, five years after she has procured a decree for a divorce in another state, brings another action for divorce against, the same man, alleging that the judgment in the former action was void.
    Appeal from special term, Clinton county.
    Argued before Learned, F. J., and Landon and Fish, JJ.
    
      JR. Corbin, for appellant. John P. Kellas, for respondent.
   Learned, P. J.

The plaintiff brings this action for divorce on the ground of adultery. The defendant admits that he was married to plaintiff as alleged; avers that, in an action heretofore brought by the plaintiff against him, in New Hampshire, for divorce, on the ground of adultery, a judgment was heretofore entered, by which the marriage was annulled; avers that after said divorce he married, in the state of Massachusetts, the woman with whom in the present complaint he is alleged to have committed adultery. The plaintiff asked for alimony, and an allowance for counsel. The special term granted the latter only, and the defendant appealed. In her petition for alimony the plaintiff set forth the New Hampshire action, giving a copy of the judgment roll, and averred that that judgment was void. The principal fact stated, to show that the judgment was void, is that defendant was not a resident then of New Hampshire. The defendant’s contention is that, where the marital relation is shown not to exist, there should be no allowance for alimony or counsel fee, and that by the decree in New Hampshire this relation has been dissolved. On the motion papers for alimony appears a copy of the judgment roll in the divorce suit in New Hampshire.

In considering this question, we should notice the reason for which courts originally granted alimony and allowances. It was that a married woman could make no contract, and therefore could not agree to compensate the counsel, and also that she (to state it loosely) had no property under her control, and therefore had no means of payment. Her condition at this day is quite different, although the power to grant alimony and allowance is continued by the Code. But in the present case the plaintiff, as a practical matter, has been for some five years free from her husband. She, on her own motion, has become separated from him. He has accepted the decision of the New Hampshire court by marrying again. So that he could not, as a practical matter, assert any power or control over her. She really stands as independent of him, whatever the legal position may be, as any plaintiff towards any defendant. Why, then, should he be required to pay her counsel? They will be employed to show that a judgment which she obtained, and which he has in the most solemn manner accepted, is void. They will be employed to show that he has committed the crime of bigamy, and doing this in reliance on her most solemn assertion that he was free to marry. Of course, these considerations may have no effect on the trial of the issues; but it seems to us that they are very important on the present question. We do not think it reasonable to compel the defendant to pay the counsel fees of a litigation where the plaintiff’s own act has led him into the alleged wrong. The learned justice at special term had himself much hesitation in' granting any allowance; and, on the whole, we think none should have been granted. Order reversed, and motion denied. No costs. All concur.  