
    William O. Horn, Plaintiff, v. Kathleen Horn, Defendant.
    (Supreme Court, New York Special Term,
    July, 1911.)
    Divorce — Trial: Trial of issues of fact by jury: Decision after verdict. Where, in an action for divorce, the answer puts in issue the adultery of defendant alleged in the complaint, the finding of the jury upon that issue is conclusive; but, as to other issues, the verdict is merely advisory to the trial court, which may either adopt, modify, or disregard it and make its own findings.
    Where, in a husband’s action for divorce, the defendant after a denial of the adultery alleged in the complaint sets up as a further defense that such adultery, if committed, was with the connivance and procurement of her husband and that she was of unsound mind at that time, the finding of the jury that defendant was guilty of adultery as charged is conclusive.
    Further findings that defendant was sane at the time of the commission of the alleged adultery and that it was committed without the connivance or procurement of the plaintiff are not conclusive; but such issues must be tried at the Special Term and, pending the trial thereof, temporary alimony must be paid to the wife.
    Motion to vacate an order awarding temporary alimony.-
    John F. McIntyre, for plaintiff and motion.
    Laimbeer, Marcus & Weis (Francis E. Laimbeer, of counsel), for defendant, opposed.
   Giegerich, J.

With respect to the defendant’s right to further alimony, it should be observed that it was a well-settled rule under the old cases that temporary alimony continues until the entry' of the judgment granting or denying the relief asked. Germond v. Germond, 1 Paige, 33; Stanford v. Stanford, 1 Edw. Ch. 317; Moncrief v. Moncrief, 15 Abb. Pr. 187; Beadleston v. Beadleston, 23 Wkly. Dig. 365; 3 Ency. L. & Pr. 137. In Germond v. Germond, supra, the chancellor held that the wife was entitled to alimony up to the termination of the suit by a final decree. The same rule was applied in Stanford v. Stanford, supra, where the vice-chancellor held that a wife is entitled to temporary alimony, up to a final decree, notwithstanding a jury upon a feigned issue had given a verdict of adultery against her. The last cited case was followed by the General Term of this department in Moncrief v. Moncrief, 15 Abb. Pr. 187, where the court (at p. 188) said that the rule as to the payment of alimony was that it is to be paid up to the entry of the final judgment (citing Stanford v. Stanford, supra), even if the decision at the trial should be adverse to the wife. In Beadleston v. Beadleston, supra, the General Term of this department held that a plaintiff, in an action for an absolute divorce, was not relieved from the obligation of paying weekly alimony pendente lite by the filing of a referee’s report in his favor, the court saying that the action was not finally determined until the entry of judgment, and that the obligation to pay alimony did not cease until that time. While I am inclined to the view that the cases of Stanford v. Stanford, supra, and Moncrief v. Moncrief, supra, are no longer controlling where the sole issue is that of adultery, by reason of the provisions of said sections 1757 and 970 of the Code, as construed in the light of the decision in Lowenthal v. Lowenthal, supra, still, as there are important issues in this case other than adultery yet to be passed upon at the Special Term, the principle of those cases does apply to the present situation, and I do not think the wife’s support should be withdrawn pending the trial and final disposition of such other issues, even though the jury has found her guilty of adultery. From the papers before me it appears that the question of the defendant’s insanity at the time she is alleged to have committed the act of adultéry was strongly contested at the trial before the jury, no less than seven experts having testified in her favor, and it is claimed by her counsel that error was committed by the trial judge in excluding certain testimony bearing upon the defendant’s alleged insanity and also testimony tending to establish the defense that the alleged adultery was committed with the consent, connivance, privity or procurement of the plaintiff, and that the defendant intends in good faith to appeal as soon as she is able to do so. Before the plaintiff will be entitled to an interlocutory judgment, apparently serious questions remain to be passed upon at Special Term concerning the defendant’s sanity, as well as concerning the plaintiff’s consent, connivance, privity and procurement. Such being the case, I do not think that the order in question should be vacated at the present time. The motion is, therefore, denied, with ten dollars costs.

Motion denied, with ten dollars costs.  