Mills v. Mills , 158 N.Y.S. 753 ( 1916 )

Whitaker, J.

The judgment appealed from was rendered in an action brought to recover arrears of alimony alleged to have been due upon an order of the Circuit Court of Cook county, state of Illinois, dated April 19, 1911, which directed the defendant herein to pay to plaintiff the sum of seven dollars a week pendente lite and twenty-five dollars counsel fee in an action then pending between the plaintiff and her husband, the defendant, for an absolute divorce. The defendant in that and in this action, Harry Mills, also instituted an action against this plaintiff in the same court and state for an absolute divorce so that there were cross actions. On the 8th day of November, 1911, both' these actions came on for trial and after a trial before the court a .judgment was duly rendered and. entered after such trial in favor of Harry Mills, the plaintiff in that ■ action and defendant in this action; and a final judgment and decree entered which finally determined both actions in the Illinois court in favor of the plaintiff there, Harry Mills, who is the defendant herein. There was no provision made in the decree for- alimony. Upon the trial of this action the plaintiff introduced in evidence the order awarding temporary alimony duly authenticated; evidence tending to show that it had not been paid and that there were about two hundred and three dollars due and rested.

The defendant after moving to dismiss and for judgment on the merits and the motions being denied offered in evidence the final judgment and decree between the parties for an absolute divorce and also a stipulation in the case of Harry Mills v. Annie Maude Mills, wherein it was stipulated that the order awarding alimony upon which this action is brought ‘ ‘ be released and satisfied.” This stipulation was not signed by the parties themselves b.ut by their respective attorneys. This constituted the defendant’s case.

The defendant asks for a reversal of the judgment entered in favor of plaintiff upon the following grounds: First, that the order directing the payment of alimony pendente lite cannot form the basis of an independent action; second, that the court had no jurisdiction of the subject of the action; third, that the stipulation received in evidence was an effectual bar to the action.

I think the first ground urged by the appellant is sufficient to dispose of the case. There is no evidence in the case as to what the law of Illinois is upon the questions in litigation. We are governed, therefore, by the law as it is in this state. The order awarding alimony expressly provides that the alimony “ is temporary alimony during the pendency of this cause. ’ ’ The evidence shows that the cause in which it was granted is no longer pending; that it has been finally determined and ended and of course the life of the order for alimony pendente lite ended at the same time, and under the law of this state proceedings to enforce payment of temporary alimony must be taken in the action in which the order for alimony was granted, that is, during the pendency of the action and the life of the order. And if there is no action pending, no proceeding may be taken thereon. Matter of Thrall, 12 App. Div. 235, affd, 153 N. Y. 644; Hayes v. Hayes, 150 App. Div. 842. The defendant cites the case of Jacobson v. Jacobson, 85 Misc. Rep. 253, as decisive upon the question, wherein Mr. Justice Finelite in a very well considered and concise opinion follows the Appellate Division in holding that the remedy for disobedience of an order to pay temporary alimony is exclusive and is governed by sections 1771 and 1772 of the Code of Civil Procedure, consequently no action may be brought upon such an order. That is correct in so far as an order of a court of this state is concerned. I do not thnk Judge Finelite’s opinion applies to orders of the courts of other states, however. The order under consideration is an order of a court of Illinois and our courts will not punish for contempt disobedience of orders of courts of other states.

It is unnecessary to consider the other points raised by the appellant except to state that we think the Municipal Court under the new Municipal Court Code has jurisdiction of an action upon a foreign judgment' of a court of record.

The judgment should be reversed, with thirty dollars costs, and the complaint dismissed, with costs.

Pendleton, J., concurs; Lehman, J., concurs in the result.

Judgment reversed, with thirty dollars costs.