
    COWLES v. COWLES.
    (Supreme Court, Appellate Division, E'irst Department.
    May 20, 1898.)
    Divobce—Alimony.
    Where, in an action for absolute divorce, it appears that the husband’s income is based entirely upon personal services rendered by him, which are - liable to he reduced or entirely taken away by conditions beyond his control, an allowance of one-third of his income for the support of the wife and child may well he excessive; especially where the income in question is a gross income, from which considerable deductions must he made for necessary expenses incident to earning the income.
    Appeal from judgment on report of referee.
    Action by Lizzie V. Cowles against Eugene Cowles. Prom a judgment entered on the report of a referee, defendant appeals.
    Modified.
    Argued before PATTERSON, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
    A. H. Hummel, for appellant.
    William T. Schley, for respondent.
   INGRAHAM, J.

The action was brought for an absolute divorce, and the case was tried before a referee, who reported in favor of the plaintiff. Upon that report, judgment was entered. The appeal seeks to review the amount awarded to the plaintiff as alimony for the support of the child of the parties to the action, a boy of the age of eight years. The judgment directs the payment by the defendant to the plaintiff of the sum of §38 per week for alimony, and a further sum of §10 per week for the education and maintenance of the child. The referee found that the receipt of the defendant from his profession, which is that of an opera singer, has averaged’ for the five years prior to the trial about §7,500 per year, and "the amount awarded by the judgment for the support of the wife and child is §2,496 per year. While the testimony sustains the finding of the referee as to the actual income of the defendant for the years prior to the trial, the evidence tends to show that the income of the defendant for the year following the trial would be considerably reduced. By the contract between the defendant and his employers, his compensation was reduced from §225 to §150 per week for the theatrical season commencing in October, 1897, and ending in May, 1898; and the number of performances at which the defendant was required to sing was reduced from six to four per week.

The evidence shows that the defendant is entirely without property, and that his only income is derived from the salary paid to him as an artist, with the exception of a small sum of about §10-0 per year which he receives as a royalty upon certain songs. It also appeared, without contradiction, that the defendant’s"ability to perform his contract, and thus receive the income testified to, depends upon the condition of his voice and his being able to sing at the various performances for which he is engaged; that for the past year he has been under almost continuous medical treatment, at times being unable to sing at all, because of the condition of his throat; and that he was not, at the time of the trial, cured. His physician testifies that, when he commenced his treatment, the defendant was almost voiceless; that he could hardly speak above a whisper, was unable to sing, and was constantly taking cold; that several operations had been performed on his nose and throat, in order to relieve this congestion. It is quite evident from the testimony of the physician that the condition of the defendant’s throat was such that it was not certain that he would be able to sing four times per week during the season. . The contract itself provides for a reduction in the defendant’s compensation for each performance at which he failed to perform, and also provides that either party shall have the right to cancel and annul the contract upon giving two weeks’ notice to the other party; so that even the receipt by the defendant of the amount specified in this contract depends upon the will of the manager of the theater company, and depends also upon his ability to sing. Under these circumstances, we think the amount awarded by this judgment excessive.

The rule insisted upon by the plaintiff that a wife would be entitled to receive one-third of her husband’s income is not, and never has been; arbitrarily applied. Where the income is that received from investments, or a certain salary paid, it may not be said to be unjust; but where, as in this case, it is based entirely upon the personal services rendered by a husband, and which are liable to be reduced or entirely taken away by conditions beyond the control of the husband, thus being of such an uncertain character that they cannot be depended upon, and where the defendant has absolutely no income or means from which it can be supplied, it would seem that an allowance of one-third of the income was in excess of that which should be allowed. This is especially so where the income is a gross income, from which there must necessarily be deducted, in order to render the services for which the income is received, a considerable sum of money in the way of expenses. Here the defendant is compelled to supply certain costumes, to pay his hotel bills and his physician’s fees. Those payments are really required as a necessary disbursement in order to entitle him to receive the salary paid to him.

Under the circumstances, we think that the sum of $35 per week to be paid to the plaintiff, both for the' support of herself and her child, is as much as the income of the defendant justifies the court in awarding; and the judgment appealed from is modified by making an allowance to the wife of $25 per week, instead of $38, as allowed her in the judgment. As thus modified, the judgment is affirmed, without costs to either party upon this appeal. All concur.  