
    Jennie F. Hawkins, Respondent, v. Daniel A. Hawkins, Appellant.
    Second Department,
    December 29, 1905.
    Separation—when gction not barred by finding of adultery iñ prior action—counsel fees in such action.
    Though a wife’s adultery has bSen established in a prior action for "divorce brought by the husband which failed because of the husband’s equal guilt, he is not released from- his duty to support her, nor does such action bar a subsequent action by the wife for separation on the ground of abandonment. As the duty of support remains, counsel fees are proper iñ such action.
    Appeal by the’defendant, Daniel A. Hawkins, from so ranch of an order of the Supreme Court, made-at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of August, 1905,, as directs the payment of $1@0 counsel "fee to the plaintiff’s .attorneys.
    
      John McCormick, for the appellant.
    
      Andrew J. Shipman, for the respondent.
   Willard Bartlett, J.:

■ This is a matrimonial action for a separation on the ground of the abandonment of the plaintiff by the defendant. In a prior- suit for absolute divorce, brought by the husband against the wife, the court refused to dissolve the marriage on the ground that both parties ' had committed adultery. In the present separation suit, instituted by the wife, the court at Special Term,has allowed her a counsel fee of $100; and it is contended upon this appeal that no authority exists for making such an order inasmuch as under section if65 of the Code of Civil Procedure the wife’s adultery established by the - judgment. in the action for absolute divorce constitutes such misconduct as to entitle the husband to judgment iri the case at bar. -

■ Undoubtedly this position would be correct if the husband had not also been adjudged guilty of adultery in the prior action.. It seems to me quite clear that under our statutory system regulating thé subject of absolute and limited divorces,, the adultery-of the wife, established in an action, brought against her by her husband where the husband was denied relief on account of his own adultery, cannot be regarded as misconduct precluding the wife from prosecuting her suit for a separation. Such a suit is really nothing more in effect than an action to compel her husband to afford her support and maintenance, and I am unable to perceive any logical reason why he should be relieved of that obligation because of her adultery when he has been equally unfaithful to his marriage vows. It may be assumed that two objects are sought by a husband who institutes a suit against his wife for an absolute divorce: First, a release from his legal obligation to support his wife, and, secondly,, liberty to marry some other woman. If the wife in the present case can, be denied the right to compel her husband to support her by reason of' her adultery, notwithstanding the fact that he has also been guilty of adultery, the effect is to enable him- to attain one of the objects of his suit for absolute divorce —■ that is to say, a release from his obligation to support his wife — and this in spite of the fact that the court, by its judgment in- the divorce action, has expressly.refused to grant him any relief whatsoever.

- In the case of Wood v. Wood (2 Paige, 108, 111), decided in 1830, Chancellor Walwobth, after pointing out the differences between the French law -and the Hew York statutory law on the subject of divorces, declared: “ Here they are only granted for the criminal acts of one of the parties, and in favor of the one who is innocent. If both parties are guilty, neither has any claim to relief; and they are in that case suitable and proper companions for each other. In the case of Beeby v. Beeby (1 Hagg. Ecc. 789, 790), Lord Stowell suggested that under such circumstances the parties might live together and find sources of mutual forgiveness in the humiliation of mutual guilt. It appears to have been the English law that where a husband had successfully invoked the doctrine of recrimination against his wife in a divorce suit based upon an allegation of his adultery, the court would not, in a suit for the restitution of conjugal rights, compel the husband to live with the wife (Hope v. Hope, 1 Swab. & T. 94); but I cannot see that this fact has any bearing upon the construction which ought to be given to our own statutes. In a case of mutual guilt like this, it does not seem to me that it can have been the intention of the Legislature to justify the husband in refusing to support the wife precisely as he would be justified in doing if she alone had been guilty of adultery.

For .these reasons I advise an affirmance of the order appealed from.

Hirschberg, P. J., Woodwabd, Jenks and Rich, JJ., concurred.  