
    Frank R. Poss, Appellant, v. Lillian K. Poss, Respondent.
    First Department,
    November 6, 1914.
    Husband and wife — divorce — alimony after interlocutory judgment in husband’s favor.
    A husband should be relieved from his obligation to pay alimony, based entirely upon the order directing payment pendente lite, after the entry of an interlocutory judgment in his favor, unless facts be presented from which the court cam see that there is reasonable ground for believing that, the judgment is erroneous and will be reversed upon appeal.
    
      Appeal by the plaintiff, Frank E. Poss, 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 of New York on the 27th day of August, 1914, denying his motion to vacate an order herein directing the payment of alimony pendente lite.
    
    
      Lorren M. Hart, for the appellant.
    
      George Gordon Battle, for the respondent.
   McLaughlin, J.:

This action was brought to procure an absolute divorce. After issue had been joined the defendant moved for alimony and counsel fee. The motion was granted, and the appellant directed to pay $2,000 counsel fee and, during the pendency of the action, $500 a month alimony. The answer put in issue the allegations of the complaint that the defendant was guilty of adultery. Issues were framed and the matter was sent to a jury to determine whether or not the defendant was guilty. After a trial lasting several days a verdict was rendered in favor of the plaintiff, finding the defendant guilty of adultery as charged in the complaint. Upon this verdict and .the findings of the court at Special Term as to the remaining issues an interlocutory judgment of divorce was entered in favor of the plaintiff on the 29th of June, 1914.

The judgment decreed that the plaintiff was entitled to a judgment, to he entered as thereafter provided, dissolving the bond of matrimony and freeing the plaintiff from the obligations thereof, and that final judgment should not be entered until the expiration of three months from the entry of the interlocutory judgment. The interlocutory judgment also provided that the plaintiff “be and he hereby is relieved from his obligation to support and maintain the defendant by reason of her adultery, and that the payment of alimony cease with the signature and entry of a final judgment.” The obligation of the plaintiff, however, to pay alimony is based entirely upon the order directing such payment pendente lite. There is no provision in the interlocutory judgment which requires the plaintiff to pay alimony prior to the entry of final judgment. It merely provides that all obligation to pay alimony shall cease with the entry of final judgment, leaving the order as the only mandate requiring the payment of alimony.

The plaintiff paid the counsel fee and all the installments of alimony to and including the date of the entry of the interlocutory judgment, and thereafter moved for an order vacating or modifying the order granting alimony pendente lite so as to relieve him from further payment thereunder. The motion was denied and he appeals.

Section 1769 of the Code of Civil Procedure gives the court discretionary power, during the pendency of an action, to make and modify an order requiring the husband to pay any sums necessary to enable the wife to carry on or defend the action, or to provide suitable support for her. It was under this section that the order was made directing the appellant to pay counsel fee and alimony. He complied with the order as indicated until the interlocutory judgment was entered which judicially established that the defendant was guilty of adultery, and that at the expiration of three months plaintiff would be entitled to a final judgment dissolving the marriage contract.

The interlocutory judgment it is true did not dissolve the marriage (Matter of Crandall, 196 N. Y. 127), nor did it affect the defendant in her status as a wife or as to her marital property rights. (Burton v. Burton, 150 App. Div. 790.) But a wife has no inherent right to alimony upon an action brought by a husband for a divorce. It is granted only upon the theory that the wife may not be guilty of the charge made against her, and if the court can see when such a motion is made that there is no reasonable prospect of a wife succeeding in defeating the plaintiff’s action, then as a general rule alimony is denied, since the adultery of the wife relieves the husband of the duty to support her. (Hawkins v. Hawkins, 193 N. Y. 409.)

Here it has been judicially determined that the wife is guilty of adultery; and that fact having been so determined, it seems ' to me that the husband should be relieved of the payment of alimony, unless facts be presented from which the court can see that there is reasonable ground for at least believing that the judgment is erroneous and would be reversed upon an appeal taken therefrom. No facts are set forth from which the court can see that the finding as to defendant’s adultery was not justified by the evidence, or that the interlocutory judgment establishing that fact is erroneous. I think the motion to be relieved from the further payment of alimony should have been granted.

The order appealed from, therefore, is reversed and the motion granted, without costs.

Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.

Order reversed and motion granted, without costs.  