
    Elizabeth A. Gray, Resp’t, v. James C. Gray, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 16, 1894.)
    
    1. Divorce—Alimony.
    Where, in an action for divorce, tlie defendant is served with process and sets up, in his answer, non-residence of the parties and want of jurisdiction, he has no absolute right to have such issue decided upon a motion for alimony and counsel fees, but the court has power to compel him to furnish the plaintiff the necessary means to meet it in the usual way.
    3. Same—Admissions.
    Admissions made by the parties in an action for divorce, whether by pleading or otherwise, are not always binding upon the court or the parties themselves for all purposes and at every stage of the action.'
    3. Same—Residence.
    In cases where a separation takes place between husband and wife by reason of domestic difficulties, thfe wife may obtain a residence in this state which will enable her to maintain an action for divorce.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term awarding alimony and counsel fees to the plaintiff.
    
      Charles A. Boston, for app’lt; Frederick H. Man, for resp’t.
    
      
      Affirming 60 St. Rep. 225.
    
   O’Brien, J.

The plaintiff in this action seeks to obtain against her husband, the defendant, an absolute divorce on the ground of adultery. The court at special term made an order, which has been affirmed on appeal, directing the payment to the plaintiff by the defendant of the sum of $250 counsel fee besides $100 per month alimony for the maintenance of the plaintiff and the two children of the marriage, residing with her in this state, during the pendency of the action. •

The only question presented by this appeal is whether the court had the power to make the order. It is alleged in the complaint that the parties were married in this state and that the plaintiff resides here; that the defendant since the marriage has committed various acts of adultery, with proper specifications as to time and place. Some of these acts are charged to have been committed within this state and pthers in the state of Pennsylvania. It is not claimed that the complaint is in any respect defective or insufficient. The defendant in his answer, after denying the commission of the offenses charged, states as a third and separate defense to the whole complaint that, at the times mentioned in the complaint, both of the parties were residents of the state of Pennsylvania, and that the courts of this state have no jurisdiction of the action. The language in which this defense is framed, referring as it does to all the times mentioned in the complaint, and the dates there mentioned being that of the marriage and of the commission of the several acts of adultery charged, renders the meaning somewhat obscure, but it was doubtless intended to include the residence of both parties at the time of the commencement of the action. The plaintiff has demurred' to this separate defense upon the ground that upon its face it is insufficient in law. The defendant’s counsel argues that the facts stated in the special defense with respect to the residence of. the parties stand admitted upon the record. It appears from a statement in the order that the pleadings with other proofs were before the court upon the hearing of the motion for counsel fees and alimony. The petition and affidavits in support of the motion would warrant a finding by the court upon the motion that the parties had separated some time before the commencement of the action and that the plaintiff was then a resident of this state as defined by § 1768 of the Code, unless the admissions of the demurrer were conclusive. Section 1756 of the Code authorizes an action for divorce where the parties were married within this state. The general rule to be derived from principles of universal application is that the courts of this state have no power to adjudge the status of parties residing beyond its jurisdiction. It is not likely that this rule was changed or intended to be changed by the provisions of the Code. "Without deciding the question we will assume for the purposes of this appeal that such is the law. But it would not follow, we think, from such concession that the order in question was made without power. It appears from the papers used upon the application that the summons was served upon the defendant in this state and that he has appeared though denying the jurisdiction as above stated. The court thus obtained jurisdiction of the defendant’s person though it may not of the subject-matter of the action. The defendant, upon his own theory, came into the courts of this state to obtain an adjudication as to the legal effect upon the action of the residence of the parties in another state at the time of the commencement of the action. He presented a question which the court was not bound to decide in advance of the trial and upon a motion of this character. The admissions of the demurrer and the allegations in the petition and affidavits were in conflict. The jurisdiction of the court to grant the plaintiff any relief was a fundamental question upon which the plaintiff was entitled to a hearing and to the assistance of counsel quite as much as upon any other question of fact or law in the ease. If it be assumed that the defense as to the jurisdiction was good the defendant might have safely disregarded the action and challenge any judgment rendered against him as void when attempted to be enforced at any time or within any jurisdiction. But he elected to have a decision upon the question in the courts of this state, and he was not entitled to that except in the regular and ordinary course of procedure and upon compliance with the usual practice with respect to counsel fees and alimony. Even if the fact of residence in another state was to be deemed settled by the demurrer, still the legal effect of the fact‘upon the suit still remained. That raised an issue of law which the defendant had no absolute right to have decided upon a motion, as the court ha'd power to compel him to furnish the plaintiff the necessary means to meet'it in the usual way. But admissions made by the parties in an action to obtain a divorce, whether by pleading or otherwise, are not always binding upon the court or the parties themselves for all purposes and at every stage of the action. It is not until judgment is rendered upon the issue of law and all opportunity for tbe party demurring to change position by amendment or withdrawal has passed, that such a pleading upon a motion like this should be given the effect claimed for it by the learned counsel for the defendant. The papers used on this motion disclosed a condition of things that might well induce the court to hesitate before declining at that stage of the case to proceed for want-of jurisdiction. The plaintiff’s petition and the affidavits in support of it states in positive terms that she resided in Brooklyn with her mother when the action was commenced. The fact that she was actually sojourning or dwelling there at the time is nowhere denied by the numerous affidavits produced by the defendant. On the contrary, it is perfectly plain as matter of fact that the plaintiff left Philadelphia, where her husband then and still resides, in April, 1893, some months before this suit was commenced, and that since that date she has been residing within this state. The point and meaning of the answer demurred to is that inasmuch as the residence and domicile of the defendant is in Pennsylvania that also must be the residence and domicile of his wife. It is no doubt true that, prima facie, the domicile of the husband is that of the wife, but it is equally true that in cases where a separation takes place by reason of domestic difficulties, such as are disclosed by this record, the wife may obtain a residence in this state which will enable her to maintain the action. Code, § 1768. It appears that numerous papers were read upon the hearing of the motion upon the question of residence by both sides without objection, and under such circumstances the court was not confined to what appeared from' the pleadings, but had the right to consider the other proofs and to do justice according to what seemed to be the actual facts of the case. Giving to all the proofs before the court their proper weight the power to make the order cannot, I think, be doubted.

It follows that the order should be affirmed, with costs.

All concur, except Bartlett, J., not voting.

Order affirmed.  