
    Minnie L. Pettibone, Appellant, v. William L. Pettibone, Respondent.
    Second Department,
    December 30, 1910.
    Husband and wife — alimony — contempt—when wife estopped from claiming increased alimony;
    Although an order for alimony pendente lite entitled the wife to ten dollars a . week in addition to the amount set if she surrendered to her husband the premises in which she lived, the husband will not be punished for contempt in failing to pay the increased amount where it appears that the wife refused to permit him to borrow money on an insurance policy in order to pay the interest oh a mortgage on the premises, that after a foreclosure the husband procured a purchaser at a certain" price but the wife would not consent to the sale ■but insisted on a sale of the property to her own attorney on condition that her husband divide his equity in the premises equally with her, which he did.
    This, because under such circumstances there was no surrender of the premises to the husband, and the wife by her action waived her right. t¡o the increased alimony.
    Appeal by the plaintiff, Minnie L. Pettibone, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of tlie county of Kings on the 31st day of May, 1910, denying the plaintiff’s motion to punish the defendant for contempt of court for his alleged failure to com-' ply with an order directing the payment of alimony and also denying a motion to strike out the answer of the defendant, in an action for separation, the answer setting up a counterclaim for an absolute divorce, and to require the defendant to give a bond in the sum of $5,000 conditioned for the payment of the alimony.
    
      Alvin G. Gass \Ignace I. Apfel with him on the brief], for the appellant.
    
      George M%irray Uulbert, for the.respondent.
   Woodwaed, J.:

The plaintiff brought an action for separation from the defendant on the ground of desertion and cruel treatment, and the defendant set up a counterclaim, alleging* adultery On the part of the plaintiff and demanding an absolute -divorce. On the 2d day of October, 1908, the court at Special Term awarded the plaintiff alimony at the rate of $15 per week and a counsel fee of $300, and the order further provided that in the event that the plaintiff surrender to the defendant the premises 269 East 19th Street, Borough of Brooklyn, City of New York, that, from said date on and during the pendency of the action, the defendant pay the plaintiff’s attorney at -his office as aforesaid, the sum of $25 per week in place and stead of said sum of $15 per week so ordered to ■the plaintiff.”

The plaintiff alleges that the defendant has failed to pay her any alimony since November 8, 1909, and that possession of the premises aforesaid having been surrendered to him on December 1,1909, after said date under the. provisions of the order entered herein on October 2, 1908, alimony accrued at the rate of $25 per week instead of the sum of $15 per week, making a total balance due and unpaid her on March 7, 1910, of $410. It appears, however, from the affidavits used upon the motion that the premises mentioned in the order were never surrendered to the defendant; that the defendant owned such premises, subject to a mortgage for $6,000 ; that the plaintiff refused to permit the defendant to borrow money upon a certain.insurance policy upon his life for the purpose of paying the accrued interest, and that, thereupon, the mortgage was foreclosed and offered for sale; that the defendant sought to avoid the sale and procured a purchaser who was willing and able to purchase the premises at $9,750, and that the plaintiff would not. consent to such sale, and that she consented to a sale of the property to her own attorney a't the figure named only on condition that the defendant would divide equally with her the equity in the premises, which was finally done.. We are of the opinion that the original order contemplated that the defendant should have the benefit of the premises as they stood ; that the plaintiff was to be paid-$15 per week with the use of the defendant’s house, and $25 per week without such use, and that when the plaintiff so conducted herself as to deprive the defendant of this resource she waived her right to the increased alimony ; that she never surrendered the premises to the defendant in any such manner as to justify her in demanding $25 per week. The plaintiff not having acted in good faith, having forced the defendant to make- a sacrifice of his resources and compelling him to permit the property to be offered for sale under a foreclosure proceeding, is not in a position to ask for his punishment as for a contempt. She has chosen to rely, not upon her rights under the order, but upon her position as a wife, to exact a. harsh bargain and to lessen the power of the defendant to meet his obligations, and at a time when she is charged with the violation of those obligations which would destroy her dower rights, and it would be an abuse of the powers of a court of equity to punish the defendant under such circumstances.

The order appealed from should be affirmed, without costs.

Hiesohberu, P. J., Jenks, Thomas and Rich, JJ., concurred.

Order affirmed, without costs.  