
    Susan A. Hobby, Respondent and Appellant, v. George R. Hobby, Appellant and Respondent.
    
      Decree of separation from bed and boa/rd — not affected by a reconciliation a/nd cohabitation unless it be sanctioned by an order of the court.
    
    In an action brought by a wife to obtain a decree of separation from her husband's bed and board, the defendant answered that in a similar action in 1868 the plaintiff recovered a judgment for separation and for alimony, which the plaintiff admitted, but in order to avoid its effect alleged that the parties were reconciled and lived together from 1875 to 1880, when the defendant again abandoned her, at which time the parties, through the intervention of a .trus*tee, entered into an agreement of separation by which the defendant coysnanted to pay thirty dollars monthly for the use of the plaintiff, which the 'defendant had not done.
    
      Held, that the action could not be maintained;
    That the decree of separation, entered in 1868, was not vacated or in any manner revoked by the reconciliation or cohabitation of the parties:
    That this could only he done by an order of the court, which was contemplated by section 1767 of the Code of Civil Procedure, a re-enactment of the provisions of the Revised Statutes;
    That the plaintiff, as the articles of separation had been avoided by the defendant’s failure to comply with their terms, was free to proceed to enforce the original decree of 1868 in the same manner as if no subsequent reconciliation had taken place.
    Appeal by the plaintiff, Susan A. Hobby, from so much 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 18th day of February, 1896, as fails to provide a counsel fee to enable the plaintiff to carry on her action; also, an appeal by the defendant, George R. Hobby, from so much of said order as awards the plaintiff alimony.
    
      David Provost, for the plaintiff.
    
      George H. Carpenter, for the defendant.
   Cullen, J.:

This action is brought to obtain a decree of separation from defendant’s bed and board. The defendant set up as a bar that in the year 1868, in a similar action instituted by the plaintiff against him, she recovered a judgment of separation and for alimony. The plaintiff admits the recovery of this judgment, but to avoid its effect avers that the parties became reconciled and lived together as husband and wife from 1875 to 1880, when the defendant again abandoned her. At that time the parties, through the intervention of a trustee, entered into an agreement of separation, whereby the defendant covenanted to pay for the plaintiff’s use the sum of thirty dollars monthly. The defendant having made default in the payment of this allowance, plaintiff instituted this action.

If it is clear that the plaintiff cannot succeed in this action, then neither alimony nor counsel fee should be allowed (Ramsden v. Ramsden, 28 Hun, 285; Davis v. Davis, 75 N. Y. 221); and if the decree of 1868 is in full force, it is practically conceded that the present action cannot be maintained.

The plaintiff’s contention is that the reconciliation of the parties operated as a discharge and determination of the decree of separation. The defendant insists that, under section 1767 of the Code, this can only be effected by an order of the court on the application of the parties, which concededly has not been had. The exact question has been determined by the General Term of the first department in Jones v. Jones (90 Hun, 414) adversely to the claim of the plaintiff. It also arose in an action in the courts of New Jersey, between the parties to the case cited (Jones v. Jones, 29 Atl. Rep. 502), and the decision was the same as that of the New York court.

In the opinions delivered with these decisions the question is discussed at length, and the authorities and statutes on the subject reviewed. In the case in 29 Atlantic Reporter a question of New York law is decided by the vice-chancellor of New Jersey, but that judge was for many years, before he went on the bench, a distinguished practitioner in the city of New York. The opinion delivered by him states so clearly the argument and reasons resulting in his decision as to leave but little to be added by us.

Undoubtedly under the English ecclesiastical law a reconciliation between the parties revoked a decree of separation without any action by the court. Whether this resulted from the peculiar form of the decree, or from the general ecclesiastical law on the subject it is needless to determine. The whole subject was reviewed at length by Chancellor Kent in Barrere v. Barrere (4 Johns. Ch. 187.) The chancellor expressly refused to grant a separation until the parties should be reconciled to each other, though he assumed that he had competent power to make such a decree. “ But such a general decree seems to be of too loose a texture, and to be too destitute of the requisite sanction. It separates the parties until they are reconciled, and leaves that event open to dispute.” (P. 195.) The decree entered in that case separated tire parties forever, with the provision that they might at any time thereafter, by their joint act, apply to the court for leave to be discharged from the decree. Section 1767 of the Code is a mere re-enactment of the provisions of the Revised Statutes on this subject (R. S. pt. 2, chap. 8, tit. 1, § 60 [1 R. S. 148]). .The original note of the revisers to this section is: “New, but conformable to the practice of the Court of Chancery (4 Johns. Ch. Rep. 187).” In the light of the subsequent legislation and this note of the revisers, I think it clear that the Legislature intended to adopt the rule laid down by the chancellor; that is to say, that the decree should not determine or be revoked by mere reconciliation or cohabitation, but only by the action of the court.

No hardship can result to the plaintiff from this decision. The articles of separation were avoided by the defendant’s failure to comply witli their terms. She may, therefore, now proceed to enforce the original decree, the same as if no subsequent reconciliation had taken place.

The order appealed from should he reversed, and the plaintiff’s application denied, without costs.

All concurred.

Order reversed, and motion denied, without costs.  