
    Katharina Weidner, App’lt, v. George Weidner, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed March 5, 1895.)
    
    Divorce—Opening default.
    Tlie order, opening a default in an action for divorce so as to permit the defendant to litigate the charge of adultery made against him, should require him to pay the alimony awarded, where he does not assert his inability to pay it, or •that the amount is out of proportion to his means, or that it is not necessary for the support of plaintiff and her children.
    Appeal from an order setting aside a decree for divorce and permitting the defendant to come in and defend the action.
    
      Charles J. Patterson, for app’lt; Almet F. Jenks, for resp’t.
   Brown, P. J.

This action was brought by the. plaintiff for an absolute divorce. At the time it was commenced the defendant was living at Allentown, in the state of Pennsylvania, and the summons was served by publication. The defendant did not appear, and on November 8, 1889, judgment was entered dissolving the marriage, and directing the defendant to pay to the plaintiff, for the support of herself and children, the sum of $15 a week. The order appealed from sets aside the judgment, and opens the default, and permits the defendant to appear and defend the action, unless the plaintiff “permits the judgment to be so amended that she will have no claim upon said defendant for support, past or future.” In case such amendment is permitted, the motion to open the default was denied. We are of the opinion that the conditions imposed upon the plaintiff are unjust towards her, and that the order should be modified. It appears that prior to the year 1889 the parties were residents of the city of Brooklyn. The defendant had suspicions as to the fidelity of his wife, and charged her with having committed adultery with one Henry Loeffler. These charges are reiterated in the defendant’s affidavit used upon this motion, but, inasmuch" as they were made the subject of judicial investigation, they are not entitled to any consideration her.e. In 1886, the defendant sued Loeffler in the city court of Brooklyn for alienating the plaintiff’s affections, and about the same time instituted an action for divorce against the plaintiff, charging her with adultery committed with Loeffler. The action for alienation of affection was tried in March, 1887, and resulted in a verdict and judgment in Loeffler’s favor, and in April, 1888, the action for divorce against the plaintiff was dismissed. In September, 1887, the plaintiff sued the defendant in the city court for a limited divorce on the ground of cruelty. No defense was made, and on November 18, 1887, judgment was entered granting to the plaintiff $15 per week alimony, and directing defendant to give security for its payment. Up to November, 1887, the defendant resided in Brooklyn, and it is very clear that he moved to Pennsly vania to escape from the enforcement of the judgment in the separation suit No alimony has ever been paid under that decree. In April, 1889, this action was commenced! The defendant admits in his moving affidavit that he received the summons and complaint, but swears he paid no attention to them, because he believed it was impossible for his wife to produce witnesses who would swear to the accusations made against him. In 1893 he moved to Newark, N. J. While there he met his wife, and he was then told of the judgment of divorce,.and the'amount of alimony which it was adjudged that he should pay. Thereafter he returned to Brooklyn, and, a copy of the judgment having been served upon him, an order was made on May 28, 1894, directing him to show caiise why he should not be punished for contempt in neglecting to comply with its terms. Three days later application was first made to set aside the judgment and open the default.

Laying aside the charges made in the defendant’s affidavit as to the plaintiff’s relations with Loeffler, which we do not think worthy of serious consideration, in view of the result of the suit against Loeffler, the main grounds upon which the defendant asks to have the judgment set aside are (1) that the testimony as to his adultery was false, and (2) that prior to the action for separation he had conveyed a considerable part of his property to the plaintiff. We are of the opinion that the defendant should have an opportunity to try the accusation of adultery made against him, and, so far as the order appealed from permits him to come in and defend the action, we agree with the conclusion of the special term. But the charge that defendant transferred a large part of his property to the plaintiff is met by the statement that the parties owned four houses and lots'in Brooklyn, the title to which stood in their joint names, and that the property was divided- between them, and the conveyance to the plaintiff was but a transfer to her of one-half of this property. If such be the fact, there can be no inference that the defendant has already provided for the plaintiff’s support; and, in this view of the case, if the facts permit the conclusion that the decree of divorce should stand, it would seem unjust to deprive the plaintiff of the provisions made therein for her support. The defendant does not now assert his inability to pay the amount of alimony awarded by the judgment, nor does he claim that the amount was out of proportion to his means, nor that it was not necessary for the support of the plaintiff and her children. It was the same amount awarded by the city court in the separation suit, and that decree has never been appealed from or complied with. And we fail to see the justice of requiring the plaintiff to surrender all provisions made for her support as a condition of retaining the benefit of the judgment of divorce. While it may be true, as the defendant testifies, that he never received the copy of the judgment of divorce, which was mailed to him at Allentown, he must be presumed to have had notice that such a j udgment was likely to be rendered against him. He was served with the summons and complaint, and knew that the suit was pending, and the charges that were made against him. He knew of the judgment in the separation suit, and he could not have supposed that, if alimony was granted in this action, it would be any less in amount than that granted in the separation suit. He took no steps to defend the suit; and after he had, according to his own admission, received actual notice of the judgment and its terms, he waited nearly nine months before he took any proceedings to vacate it. In view of this long delay to protect his rights, of the amount of alimony awarded to the plaintiff in the separation suit, and the fact that defendant left the state to escape the enforcement of the decree in that action, we are of the opinion that the judgment in this action should not be opened, unless the alimony allowed therein is paid.

The order should therefore be modified so as to provide that, upon payment by the defendant of the amount of alimony due under the judgment, the motion will be granted, otherwise it is denied, with costs; and, so modified, the order appealed from is affirmed, with $10 costs and disbursements to the appellant

All concur.  