Scragg v. Scragg , 44 N.Y. St. Rep. 845 ( 1892 )

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 offense 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 N. Y. 23, 4 N. E. Rep. 110; Jones v. Jones, 108 N. Y. 415, 15 N. E. Rep. 707; and Cross v. Cross, 108 N. Y. 628, 15 N. E. Rep. 333. 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 People v. Baker and O’Dea v. O’Dea were held not to be binding in this state were 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 those which are stated in this affidavit. It is true that he states'that he is now receiving $25 a week; and, even if this be the limit of his income, the allowance of $10 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 $10 costs and disbursements.

O’Brien, J., concurs.