
    STRONG against STRONG.
    
      New York Superior Court ;
    
    
      Special Term, June, 1865.
    Motion fob Allowance to Wife in Divobce.
    As a general rule, when an action for divorce is brought against the wife, and she, in her answer, either denies her guilt, or sets up affirmative defences, such as forgiveness or recrimination, or does both, counsel fees and alimony will be allowed her, unless the court is satisfied that she is altogether in the wrong, or has no reasonable ground of defence.
    The fact that on a trial had by a jury, on issues framed, involving a denial, forgiveness and recrimination, the jury disagreed, is enough to show that she has reasonable ground of defence, without the positive affidavits of the wife and of witnesses usually required on motions for such allowance.
    An application to the favor of the court should not he denied on the ground that the moving party is in contempt of another court.
    
      Motion by detendant to compel payment to her counsel by the plaintiff", ot a sufficient sum to meet the expenses of a retrial of the case, and to stay such re-trial, until the same should be paid.
    The affidavit of one of the defendants’ attorneys, after stating the existence, in his judgment, oí a good defence upon the merits, stated that this aedon was brought by the plaintiff to ob ain a divorce from the defendant, who at the time resided in the city of New York, and that the defendant by her aii'Wer denied the allegations of the complaint, and alleged grounds for a divorce in her favor against the plaintiff, and prayed affirmative relief. That the issues were brought on for trial in this court before Justice. Garvin, and a jury, November 23d, 1865 ; that such trial occupied several weeks, and terminated December 31st, 3 865, when the judge discharged the jury because they declared themselves unable to agree. That in the course of the trial, nineteen witnesses were examinéd for the plaintiff", and forty-five for the delendant; that, subsequent to the discharge of the jury, the plaintiff's attorney served notice of re-trial, and one of the attorneys for the plaintiff" has been heard to avow their inten-, tion of pressing a re-trial, blit no such notice of re-trial has been served by the defendant; that the separate estate of the defendant is small, and wholly inadequate to defray the necessary expenses, of another trial of this action; that heretofore, no alimony, allowance or counsel fee, has been applied for against, or paid by the plaintiff; nor has he paid anything for her suppoit, or that of her infant daughter, about six years old.
    The affidavit of the defendant’s brother stated that he was ■acquainted with the facts of the case; that the private and separate estate of the defendant does not exceed five thousand dollars, which amount has already been expended in the payment of tees to counsel, and necessary incidental legal- expenses attending the late trial, which was advanced by her father; that the defendant has not pecuniary means to meet the expenses of a new trial, which the plaintiff is seeking. He is informed, and believes that the plaintiff", Strong, is not engaged in any profession or mercantile business, but is a man of wealth, and of independent pecuniary resources, and able to pay the expenses of the defendant, as well as of the. prosecution of the action.
    The plaintiff has admitted himself possessed of five thousand dollars, yearly income. lie has not liad the charge of any one but himself and child of twelve years. That he resides with his mother, a woman of large wealth, and that upon her death, she being now seventy years of age, he is entitled to his share of a large amount of property. Piece the last trial, no attempt has been made by the defendant’s attorney to come to a re-trial.
    In opposition to the motion,, the plaintiff’s own affidavit was read, alleging that, a habeas corpus in the Supreme 'Court had been sued out by him on the 4tli of June,, 1864, to compel the defendant to deliver to him the child in question, but that she had absconded with it,'and ever since has remained concealed without the State ; that the suplemental answer was not interposed until a year after the action was commenced, that efforts have been made by the members of both families to have the issues tried by reference or arbitration, that the defendant could not have known of the acts of adultery, charged in the supplemental answer, and that upon the trial the evidence of them was conflicting and improbable; that he is not a man of wealth, nor able to pay the expenses of both sides of this litigation, that his entire income is less than four thousand dollars a year, and that he receives no income from his father’s estate.
    In addition, there was a card read, signed by some of the jurors on the trial, stating how they stood when they were discharged.
    
      Elbridge T. Gerry, and John McKeon, for the motion.
    I. There being no verdict rendered in the case, individual, opinions of jurors are of no moment (People v. Camel, 1 Park. Cr., 256; People v. Wilson, 8 Abb. Pr., 137; People v. Hartung, Id., 132; Barring'on on Statutes, 20).
    II. Any formal affidavit of innocence is unnecessary. A valid defence, recrimination, is set up, and the court, as cuetos inorum, is bound to uphold every impediment in the way of a divorce (Osgood v. Osgood, 2 Paige, 621.
    
      III. Almost as of course, a wife is entitled to alimony, and the expenses of her suit in a suit between herself and husband, / out of his property, when her own is inadequate to defray the incidental expense (Brey v. Brey, 1 Hagg. Ecc., 168, note ; D’Aguilar v. D’Aguilar, Id, 787; McKenzie v. Rhodes, 13 Abb. Pr., 339; 3 Rev. Stat. [5th ed.], 289, § 72; Lovedon v. Lovedon, 1 Phill., 209 ; D’Oyley v. D’Oyley, 29 Law. Jour. [N. S.]. P., M. & A., 165 ; Stanfred v. Stanfred, 1 Ed. Ch., 317; Hammond v Hammond, 1 Clarke Ch., 153 ; Wood v. Wood, 2 Paige, 113 ; Williams v. Williams, 3 Barb. Ch., 628 ; Halloch v. Halloch, 4 How. Pr., 160 ; Fowler v. Fowler, 4 Abb. Pr., 411).
    IV. Mrs. Strong has never been guilty of contempt towards this court, and with supposed contempts before other tribunals this court has nothing to do (Passmore Williamson’s Case, 26 Penn. St., 9). The habeas corpus, and proceedings resulting from it, were parts of the legal machinery employed at the outset of the suit, to prejudice her rights in court.
    Y. So the offer to try the cause before a referee, under the pretence of avoiding public exposure, is another artifice, and one designed to deprive her of a constitutional right (4 Macg. H. of L., cas. 162, in point).
    
    YI. The motion should be granted unconditionally.
    
      Henry A. Cram, opposed.
    I. Alimony is not granted as matter of right, but purely as favor, and it will not be granted when no reasonable chance of success of the applicant is shown (Moon v. Moon, 1 Atk., 276 ; Watkins v. Watkins, 2 Id., 96; Carpenter v. Carpenter, 19 How. Pr., 539).
    II. Nor is alimony granted when innocence of the applicant is not averred under oath. Her absence from the State is a frivolous excuse for the non-presentation of such an affidavit on this motion (Osgood v. Osgood, 2 Paige, 161; Wood v. Wood, cited in note). '
    III. The contempt committed by her violation of the writ of habeas corpus, is an answer to this motion, and any order should be conditioned on her bringing the child she now has within the State, or on her consent to try the case before a referee.
    IY. It does not appear that her separate estate is yet exhausted (Morrill v. Morrill, 2 Barb. S. Ct, 481).
    
      
       See ante, 233, where the case is reported.
    
   Jones, J.

I think it may be regarded as a general rule that when an action for divorce is brought against the'wife, and she, ;in her answer, either denies her guilt, or sets up affirmative defences, such as forgiveness or recrimination, or does both, counsel fees and alimony will be allowed her, unless the court is satisfied that the wife is altogether in the wrong, or has no reasonable ground of defence, in which case, the court, in the exercise of a sound discretion, may refuse counsel fee and alimony.

The numerous cases cited on the argument do not impugn this general rule.; some of these cases merely show what matters the courts have considered to be sufficient to show that the wife is altogether in the wrong, or has no reasonable ground of defence, while others show that under the circumstances detailed in them, the court will hold that the wife has a reasonable ground of defence, and that she is not altogether in the wrong.

Thus, some of those cases hold that if the wife do not deny her guilt under oath, or do not either swear positively to the allegation constituting her affirmative defences, or prove those allegations by the oath of persons having positive knowledge thereof, then'the court will say that either the wife is altogether in the wrong, or has no reasonable ground of defence. Other of the cases hold that if the wife denies her guilt under oath, or positively swears to the allegation in her answer constituting affirmative defences, then, although affidavits may be produced contradicting her positive oath of innocence, or contradicting her positive oath as to the affirmative defences, still the court will be satisfied either that she is not altogether in .the wrong, or that she has a reasonable ground of defence. One case intimates thkt although the wife may not be able to swear to her innocence, and may be able to swear only on information and belief to the allegations constituting her affirmative defences, yet if she produces the positive affidavits of those who know the facts constituting such affirmative defences, then the court will be satisfied that she has a reasonable ground of defence.

In the present case, the defendant, by her original answer, denies her guilt, and sets up, as an affirmative defence, forgiveness by the plaintiff. This answer is not sworn to. By her supplemental answer she sets up, as an affirmative defence, adultery committed by the plaintiff. This answer has the usual verification required by the Code. By this verification she does not swear positively that the recriminatory charges made by her are true of her own knowledge. Indeed, the affidavit which is made on which to found the motion for leave to file a supplemental answer, clearly shows that the only knowledge she had of the recriminatory charges was from information given by others, which information she believed to be true. She has never sworn to her innocence, nor to forgiveness by the plaintiff.

From this statement it is evident that if the application had been made before trial, upon the complaint, answer and supplemental answer, it must have been denied under the authority of the cases cited on the argument.

The question now presents itself whether the fact of a trial having been had by a jury, on issues framed, which resulted in a disagreement, can, under any circumstances, take the case out of the rule which obtains on motions before trial, that if a wife neither swears to her innocence, nor having set up, as an affirmative defence, recriminatory charges on information and belief, which are denied on oath by the husband, brings to support those allegations, affidavits of witnesses who knew the facts, alimony and counsel fees will be denied.

I think it can, and not only that, but can bring the case within that other rule which obtains in motions of this character made before trial, viz.: that although a wife may be unable to swear to her innocence, and may be able to swear in her answer to recriminatory charges on information and belief only, yet if she bring the positive affidavits of those who of their own knowledge know the facts constituting the recriminatory charges, alimony and counsel fees will be allowed, although the husband denies the charges against him under oath.

If the evidence adduced at the trial and its effect on the jury' is such as to show the court that there was positive evidence in support of the recriminatory charges, given by witnesses who of their own knowledge knew the fact, and the jury disagreed, then the wife, on motion after judgment, stands in the same (if not better) position than she would on a motion made before trial founded on the affidavits of the witnesses, embodying therein the matters testified to by them on the trial. . •

The defendant in this ciase occupies this position. There was affirmative evidence adduced in support of the recriminatory charges against plaintiff" by parties who professed to know the facts of their own knowledge. This matter was litigated, as well as all others. The jury disagreed. Throwing out of consideration the card of the jurors—which, being a mere e.x parte statement, not under the sanction of an oath, should have no influence on the decision of this motion—it is impossible to say on what issue the jury disagreed, or how they stood., For aught the court knows, they disagreed on the issue of the recriminatory charges, and on that stood eleven for the defendant against one for the plaintiff. In such case the court cannot say she has no reasonable ground of defence.

But let us consider the card of the jurors. By that it appears that the disagreement was on the recriminatory charges, and that the jury stood two for the defendant against ten for the plaintiff. If she, on the past trial, has been able to produce such proof of the truth of her recriminatory charges as to cause two of the jurors to believe them to be true, the court cannot say but that she may ultimately succeed in causing the whole twelve to believe them true.

Defendant, in my view, stands in a far better position than if she had made her motion before trial on ex parte affidavits made by the persons whom she called on the trial to prove her recriminatory charges.. If in such case she would be allowed alimony and counsel fees, notwithstanding the denial on oath by her husband (see Osgood v. Osgood, 2 Paige, 161), she should now be allowed them, after those persons have given their testimony orally, and been cross-examined with the result of impressing two jurors with the truth of their statements.

All the cases cited on the argument were cases of motions before trial. I think they have, no application to this case, and, under all the circumstances, I feel I would not be warranted in holding that defendant lias no reasonable ground of defence.

But it is urged that the story told by the witnesses who swore in support of this defence is too improbable to be believed. Yet at least two of the jurors, who were sworn well and truly to try the issues, and give a true verdict according to the evidence, not only considered it probable but believed it to be true. It cannot be answered that they were recreant to their oath; on the contrary, it must be assumed that such was their honest opinion. The fact that ten jurors believed otherwise can have but little weight. Men’s minds run in different channels.

Although the minds of these ten were so differently constituted from the minds of the two as to lead them to a different conclusion, yet I cannot undertake to say that on the next jury summoned iron the inhabitants of this large city, the minds of the whole twelve may not be so constituted so nearly alike to the minds of the two as to lead them to the same conclusion that these two arrived at.

I do not intend to express my opinion on the question whether the bare disagreement of a jury on the issue of the guilt or innocence of the wife, she ' never having denied her guilt under oath, would be sufficient to satisfy the court cither that she was not entirely in the wrong, or that she had a reasonable ground of defence.

It is urged that defendant is in contempt of the Supreme Court, and that as the granting of this motion is a matter of favor, it should not be granted while she is in contempt. I do not so understand the doctrine on this subject; I understand it thus: If a party being in contempt of a court asks that same court for a favor, the court will not grant it, and on this ground; a court will not allow a party to say : “ I contemn your authority; I will act in opén disregard and defiance of it; and while defying you, I will ask you whom I thus contemn and defy to grant me a favor.” The reason of the rule does not apply when the favor is asked of one court while the contempt is against another.

The authority of the court in which the favor is asked has not been defied. I think, moreover, that it is very doubtful whether the bare fact that a party is charged in ex parte affidavits (although there is no denial of them) with having wilfully disobeyed an order of the court will be sufficient to induce that court withhold a favor from such party. I am inclined to the opinion that to induce a court to withhold a favor on the ground that the applicant is in contempt, such party must have been adjudged by the court to be in contempt.

It is insisted that if the motion is granted it should be on condition that defendant consents to a reference. I see no reason why a wife should be forced to forego her right of a trial by jury simply because she wishes to be provided with means to conduct her defence, and to be supported pending the litigation.

I have come to the conclusion that counsel fees and alimony should be allowed. As, however, defendant’s counsel on the argument expressly waived and abandoned that portion of the motion which called for alimony, and declined to receive it, I shall not order it. The court will not thrust on a party a favor which he does not ask but expressly declines.

With respect to the amount to, be allowed for counsel fees, I am of opinion that, under all the circumstances, the sum of one thousand dollars should be allowed, with liberty to the defendant to move to increase it on further affidavits, showing more positively and clearly the extent of plaintiff’s interest in his father’s estate, whether he realizes anything therefrom, and if so, how much.

let an order be entered directing the plaintiff to pay to defendant or her counsel, Messrs. McKeon & Gerry, one thousand dollars toward the expenses of defending this action', with liberty to defendant to move to increase the amount on further affidavits showing more clearly and positively the extent of plaintiff’s interest in his father’s estate, whether he realizes anything therefrom, and if so, how much. Bo costs of this motion to either party. The order to be máde without imposing any condition on defendant  