
    Agnes Jones, Resp’t, v. John Jones, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15 1895.)
    
    Separation—Revocation.
    The fact that parties to a decree of separation have lived together as husband and wife after the entry of such decree, does not operate to revoke it. In such case, there must he an order of revocation from the court which rendered it.
    
      Plaintiff appeals from so much- of an order as denied a motion to punish defendant for contempt for failure to pay alimony, and defendant appeals from so much of said order as awarded plaintiff alimony from August 1, 1895.
    
      Albert Day, for pl’ff; Ralph II. Raphael, for deft.
   Parker, J.

Both parties appeal from the order under review, which is the outcome of a motion on the part of the plaintiff to punish the defendant for contempt of court in refusing to pay alimony awarded by a judgment adjudging that the plaintiff and defendant be separated from bed and board forever. The judgment was granted, and entered in this county on the 6th day of June, 1890, and the defendant never made any payment thereunder to the plaintiff. From the affidavits submitted on the motion it appeared that the plaintiff, shortly after its entry, went to the defendant’s home in New Jersey, and lived there for a considerable length of time. The defendant claims that his wife freely returned to him, and asked to be taken back ; while she asserts that she was induced to go to his home in New Jersey by a letter received from the defendant, in which he asked her to call, and receive payment of the alimony due to her under the decree; that, upon her calling, he kneeled down, and begged her to return to him. After a time, it seems, they found themselves unable to get on together, and the husband then instituted proceedings in New Jersey for a separation, which resulted in the dismissal of his petition. The learned judge at special term was of the opinion that, inasmuch as the husband actually provided for his wife and children during some considerable portion of the time, and was compelled to her costs and alimony in the proceeding instituted by him in the courts of New Jersey, considered in connection with the fact that he is a man without means, ought to be accepted by the court as a sufficient reason for refusing to punish him for contempt because of his failure to pay, in addition, the sum awarded by the decree.

On examination of the affidavits induces us to approve of the manner hi which the special term exercised its discretion. The defendant, however, insisted that the legal effect of the return of the plaintiff to the defendant’s home, followed as it was by their living together for quite a period of time, was to annul the decree of separation, and hence plaintiff’s motion should be denied, on the ground that there was no decree in existence upon which to base the motion. The court held the decree to be still in force, and that plaintiff should be paid alimony after August 1, 1895, in accordance with its provisions. From so much of the order as recognizes the judgment of separation to be in full force and effect, the defendant appeals. The question presented by such appeal, therefore, is whether the fact that the parties lived together as husband and wife after the entry of the decree operated to revoke it. Section 1767 of the Code of Civil Procedure provides that:

“Upon the joint application of the parties accompanied with satisfactory evidence of their reconciliation, a judgment for a separation forever, or for a limited period, rendered as prescribed in this article may be revoked at any time, by the court which rendered it, subject to such regulations and restrictions as the court thinks fit to impose.”

This provisions was taken from the Revised Statutes, and was that enacted in 1828. 2 Rev. St. p. 147, § 56. Prior to that time there was no statute in this state on that subject. The defendant's contention is that the ecclesiastical law of England, so far as it related to the subject of divorce, became a part of it of common law, and therefore was, by the constitution of 1777, made a part of the law of this state, subject, nevertheless, to such alterations as, the legislature should make. Hence, at the time of the enactment of the statute to which we have referred, 'it was the law of this state that subsequent cohabitation and reconciliation avoided and rendered of no effect a decree of separation, as the statute in terms was not exclusive. His further contention is that the remedy provided by the statute was cumulative with the one already existing at common law. This general question came before Chancellor Sanford in 1825 in the case of Burtis v. Burtis, Hopk. Ch. 557, which was an action to annul a marriage contract on the ground of the impotency of the husband, which was not at that time authorized by the statutes of the state. The plaintiff’s contention was, as is the defendant’s here, the law of this state. The learned chancellor reached the conclusion that the law of England concerning divorce was never adopted in this state; that our statutes concerning divorce are original regulations, which do not adopt or introduce the ecclesiastical law of England. In the course of his argument he asserted that from the time when New York became a province of England down to the time of its becoming a state there were but four divorces, and these were granted by Gfov. Lovelace,—one in 1670, and the other three in 1672; that the colony never had a court possessing jurisdiction of matrimonal causes, or power to grant divorces; and that its legislature never enacted a statute defining the causes of divorce, or authorizing divorce. And, reasoning from these and other facts considered, he reached the conclusion that the law of England concerning divorce and matrimonial causes was never adopted in fact or in practice, and never became the law of the colony. As the constitution of 1777 provided that “ such parts of the common law and of the acts of the legislature of the colony of New York as together did form the law of the colony * * * shall be and continue the law of this state subject to such alterations as the legislature shall make concerning the same,” his conclusion necessarily followed that the law of England concerning divorce and matrimonial actions does not form a part of the law of this state. This case, so far as we have been able to ascertain, has never been criticised by the courts, and it was followed in Campbell v. Crampton, 18 Blatchf. 150, 160. In Barrere v. Barrere, 4 Johns. Ch. 187, Chancellor Kent, in an action for a separation, carefully considered what period, and upon what terms and conditions, a separation should be decreed. The necessity for its consideration was predicated upon the provisions of the statute which authorized the chancellor to decree a separation forever “ or for a limited time,” or “ to make such other decree ” as the case may require. And the importance of a right disposition of it, not only from the-standpoint of the parties directly involved, but also from that of the public, which is always treated as a third party in matrimonial actions, was carefully considered as aids to that wisest possible conclusion at which he aimed. He referred to the practice in such cases in England, France, and Holland, making special note of the fact that while the decree of divorce a mensa et thora, in England, is said to be either for a time or without limitation of time, yet by the form of the decree the separation is only until a reconciliation. He followed the discussion of the authorities upon the practice in such cases in the several countries to which we had referred, with the following observations:

“ My inference from this review is that by the canon law of England, and of the nations on the continent where the canon law prevails, a time for reconciliation is left open to the parties-upon these qualified divorces from bed' and board; and the indulgence is found in sound policy, and dictated by benevolence. The question, then, arises whether the decree ought not to pursue the formula given in 0 ugh ton (Ought. Ordo Judi. tit. 215, § 4), and declare a separation until the parties should be reconciled to> each other. I assume that I have competent power to make such a decree 1 under the statute. * * * ’ But such general decree seems to be of too loose a texture, and to be destitute of the requisite sanction. It separates the parties until they are reconciled, and leaves that event open to dispute. * * * I prefer that the sentence. shall be binding and effectual until the parties-shall have applied to the court, and received upon 'just grounds a. judicial recognition of the certainty and surety of their reconciliation.”

He directed that the decree to be entered should provide:

“ That the plaintiff and defendant should be separated from bed and board forever; provided, however, that the parties may, at-any time hereafter, by their joint and mutually free and voluntary act, apply to the court for leave to be discharged from this decretal order.”

This decree, which the learned chancellor made as a just exercise of the power conferred upon him by the statute, seems to have so favorably impressed the legislature that nine years thereafter they incorporated the practice adopted by him into a statute, and it has continued to be a law of this state ever since.

We think that costs should not have been allowed to the plaintiff, nor should the concluding paragraph of the order have been inserted, which reads as follows:

“And without prejudice to proceedings to collect or secure the back alimony, by proceeding other that with the contempt proceeding.”

That question was not before the court, and it was powerless, therefore, to make any order affecting the rights of the parties in that respect.

The order should be accordingly modified, and, as so modified, affirmed.  