
    William O. Horn, Respondent, v. Kathleen Horn, Appellant.
    First Department,
    February 3, 1911.
    Practice — modification of order by another justice on consent of parties — husband and wife — divorce—■ insanity — alimony pendente lite — when amount should not he reduced—appeal — waiver.
    Where after an allowance of alimony with counsel fees pending an action for divorce, a motion to'reduce the allowance is made before another justice hy ’ mutual consent of parties, the motion will he treated as one for a reargument which might have been entertained hy the justice granting the original order. Qumre, as to-whether it is a defense to an action for absolute divorce to show that the adultery was committed hy the defendant when insane.
    Where a motion to reduce the amount of alimony pendente iite was made at a time when the parties had expressly stipulated that the issue of insanity he submitted to a jury, and there-is no motion for. relief from such stipulatiou, and the court did not deem the original allowance excessive, provided. that ■issue was to be tried instead of decided as a matter of law in advance of trial, I ’ an order reducing the amount of alimony will be reversed.
    The wife- did not waive her right to appeal from the order reducing the alimony by accepting the part of the alimony allowed hy the order.
    Appeal by the defendant, Kathleen Horn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county-©! New York on the 11th day of October, 1910, modifying an order for the payment of counsel fees. '
    
      James W. Osborne, for the appellant.
    
      John F. McIntyre [David C. Hirsch with him on the brief], for the respondent.
   Laughlin, J.:

On the 26tli day of July, 1910, the' Special Term, Mr. Justice 'Giegebioh presiding, on motion of the defendant, duly madóxan ' order requiring the plaintiff to pay to the attorneys foi\the defendant the sum of $2,500 for future legal services to be performed bjf them in defending the action, and $500 for future disbursements in^ the defense thereof. Thereafter plaintiff noticed a motion at Special \ Term, returnable on the IStli day of September, 1910, for the -V modification of the order 'by reducing the allowance - for counsel. t fees to $1,000. The motion was heard by Mr. Justice Whitney, counsel for appellant. having consented that it need not be referred to the justice who presided when the original order was granted, and resulted in the order from which the appeal has been taken.

In view of that consent I am of opinion that the motion should be regarded as in effect a motion for a reargument which might have been entertained by Mr. Justice Giegerich. The order was modified so as to provide for the present payment of $1,000 of the $2,500, and that the payment or non-payment of the balance should be the “ subject of a motion by either party when it shall have become apparent that the insanity issue will or will not be tried • upon the facts.” It is evident from the order and from the .memorandum delivered on the motion that the learned trial court did not consider the allowance of $2,500 for counsel fee too large provided the issue of insanity of the defendant was to be tried; but he, at least, doubted whether insanity at the time of committing the acts of misconduct is a defense to an action for divorce, and he suggested that the question might be determined in advance of the trial.

The defendant in her answer denied the adultery with which she was charged in the complaint and interposed as a defense that at the time of the alleged commission of adultery she was of unsound mind and did not know the nature Of the act. On the 22d day of April, 1910, on the consent in writing of the attorneys for the respective parties, the court made an order settling as one of the issues to be tried by a jury a separate issue as to whether the defendant was “ of sound mind at the time when she is charged with having committed adultery ” at the place and with the person specified. There could be no appeal from that order and there has been-no motion to relieve either party from the stipulation. and for a modification of the order. At the time the order from which-the appeal has been taken was made therefor, by the express stipulation of the parties the issue of insanity was to be submitted to a determination in the first instance, at least, by a jury.

Counsel have argued on this appeal the interesting question as to whether insanity is. a defense to an action for divorce, and if so, the further question’involved therein or to which it gives rise as to whether it is properly triable b'y the jury or by the court. We have no statute which makes insanity a defense in such a case, but there is considerable authority to the effect that it is a defense and that it is involved in the main issue with respect to the adultery upon the theory that adultery within the spirit and intent of the statute implies consent"or acquiescence. (Broadstreet v. Broadstreet, 7 Mass. 474; Nichols v. Nichols, 31 Vt. 323; Wray v. Wray, 19 Ala. 522; Mims v. Mims, 33 id. 98; Hill v. Hill, 27 N. J. Eq. 214; Rathbun v. Rathbun, 40 How. Pr. 328; Hansell v. Hansell, 3 Penn. Dist. Rep. 724. See, also, Bailey v. Bailey, 41 Hun, 424; Cook v.Cook, 53 Barb. 180; Bishop Mar., Div. & Sep. § 1515.) And there is some authority the other way. (Matchin v. Matchin, 6 Barr [Penn.], 332 ; 47 Am. Dec. 466; Nelson Div. & Sep. 178.) This court, in Wilcox v. Wilcox (116 App. Div. 423), struck from an order settling the issues in a divorce action the issue of insanity, but the question as to whether or not insanity was a defense and if so was involved in the issue of adultery was neither presented for decision nor discussed. We are of the opinion, however, that this appeal does not necessarily present either of these questions for decision and that they are of such public importance that they should be left for re-examination and decision when fairly presented. It is manifest that the learned justice at Special Term would not have modified the order had he expected that it would be necessary to try the issue of insanity before a jury.' It is not claimed that the allowance, was too large if the issue of insanity is to be tried before a jury and in the circumstances we deem it reasonable.

It is contended on the part of the respondent that appellant waived her right to appeal from the order by accepting the part of the allowance which the modifying order leaves unaffected. There is no merit in that point for such acceptance does not constitute the acceptance of a favor, under .the second order.

Therefore, the order should be reversed, with ten dollars costs and disbursements, and the motion to modify the former order denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, .with ten dollars costs.  