
    Deborah Scragg, Resp’t, v. George H. Scragg, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Divorce—Jurisdiction.
    Where the plaintiff is a resident of this state and was a resident when the offense was committed and the action commenced, and the marriage was solemnized in this state, the courts of this state have jurisdiction of an action for divorce, irrespective of the residence of the defendant or the-service of process upon him in this state. Service by publication when he is a non-resident is sufficient.
    3. Same—Alimony.
    Where the defendant admits that he is receiving twenty-five dollars per week, an allowance of ten dollars per week for the support of his wife, and three children is not excessive.
    Appeal from order directing the defendant to pay counsel fee-, and alimony in an action for divorce.
    
      L. L. Tenney, for app’lt; L. Cohen, for resp’t.
   Van Brunt, P. J.

This action was commenced in July, 1891,, by the issuance of a summons and complaint herein, and was. brought for an absolute divorce upon the ground of the adultery of the defendant.

In August, 1891, in consequence of the absence of the defendant from the state, he being a non-resident, an order was made directing the summons to be served by publication and it was so-served.

The defendant appeared specially to raise -the question of jurisdiction and interposed a verified answer setting up the want of jurisdiction of the court over his person, and as a separate defense denying every charge of adultery alleged in the complaint

It appears that the plaintiff is a resident of this state, was a resident of this state when the offence was committed, and when the action was commenced, and that the marriage was solemnized within this state.

It is urged upon the part of the appellant that alimony will not-be granted where it clearly appears that the plaintiff cannot succeed in the action, and that no valid judgment of divorce can be rendered against the defendant because the court has obtained no jurisdiction over his person; and we are referred as authorities-for this proposition to’ the cases of People v. Baker, 76 N. Y., 78; O'Dea v. O'Dea, 101 id., 23; Jones v. Jones, 108 id., 415; 13 St. Rep., 838; and Cross v. Cross, 108 N. Y., 628; 13 St. Rep., 470. These cases by no means establish the claim made upon the part of the defendant

The facts alleged in the complaint by the express provisions of the Code gave jurisdiction to the courts of this state to entertain the action, and the principal grounds upon which the decrees in the cases of The People v. Baker and O'Dea v. O'Dea were held not to be binding in this state was because the divorce had been granted in the state of Ohio upon grounds not recognized by the laws of this state, and against the public policy of this state upon that subject. And in the case of Cross v. Cross, one of the elements which entered into the consideration of the court was the fact that the defendant never had any notice of the proceeding.

It will be seen, therefore, that the cases cited in no way conflict -with the jurisdiction of this court to entertain the action upon the grounds specified in the complaint.

It is further urged that no facts are presented which tend to prove the defendant’s adultery or to justify the bringing of the .action. In respect to this point it seems to be sufficient to say that the defendant himself admits having committed adultery with one of the persons charged in the complaint, and the only •defense offered was that it had been condoned and was prior to the date alleged in the complaint. But there is evidence before the court showing that the person with whom this adultery was admitted to have been committed remained a member of his household until after the date at which it is alleged in the complaint that adultery with her was committed.

In respect to the amount of the alimony the affidavit of the defendant throws but little light upon the amount of his income or his ability to pay. He merely negatives certain assertions made in the plaintiff’s affidavit, by alleging that he earns sums less than tliose which are stated in this affidavit. It is true that he states that he is now receiving twenty-five dollars a week; and even if this be the limit of his income, the allowance of ten dollars per week for the support of his wife and the three children does not seem to be in any degree excessive.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Ingraham, J.

I concur with the presiding justice that the order appealed from should be affirmed. The legislature has given this court jurisdiction to decree a divorce where the plaintiff was a resident of the state when the offense was committed, and is a resident thereof when the action was commenced, or where the parties were married within this state, irrespective of the residence of the defendant, or the service of process on him within this state. Whether or not other states or foreign countries will recognize a decree granted where the defendant is not personally served within this state, or does not appear in the action, cannot affect the jurisdiction of this court, or the validity of the decree within this state. It is enough for us that by express provision of law this court is given jurisdiction to entertain this action, and to make a decree which will be valid in this state, and in an action brought for a divorce the court is by express1 provision of.the Code given power to grant alimony and counsel fee. The fact that this court has refused to recognize judgments rendered in courts of other states where such courts have not obtained jurisdiction over the person of the defendant by service of process upon him within the state in which the divorce is granted is no reason why the courts of this state should refuse to exercise the jurisdiction expressly given to them by law.

I also concur with the presiding justice that the amount awarded by the order appealed from was under the circumstances' reasonable.

Order affirmed, with ten dollars costs and disbursements.  