WILLIAM J. FOX, Respondent,
MARGARET FOX, Appellant.
RE-ARGUMENT of an appeal by the defendant, Margaret Fox, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of April, 1910, and also from an order entered in said clerk's office on the 2d day of May, 1910, resettling the former order.
Felix Reifschneider, Jr., for the appellant.
Charles L. Fasullo [Joseph G. Giambalvo with him on the brief], for the respondent.
The parties are husband and wife. The defendant brought an action against the plaintiff in April, 1908, for separation on the ground of cruel treatment, and on the 30th day of June, 1909, a
decree was entered in her favor, giving her the sum of thirty dollars a month alimony. It is undisputed that the alimony has been unpaid for a considerable period and that sometime in the latter part of the year 1909 she had directed her counsel to institute proceedings to punish the plaintiff for contempt because of his default in such payment. It further appears that shortly after the decree of separation was entered the plaintiff instituted an action against the defendant for an absolute divorce on the ground of adultery, which action was tried in the month of October, 1909, and the complaint dismissed for lack of evidence. Thereafter the plaintiff instituted a second action for an absolute divorce, in which judgment was entered by default on the 28th day of January, 1910, and the defendant claims to have heard of this judgment from her attorney while consulting him shortly thereafter in reference to the contemplated proceedings for contempt in failure to pay the alimony; and she thereupon made a motion to have her default opened so that she might defend the action. She denied that service of the summons and complaint had been made on her, but the court found otherwise on adequate proof. The learned Special Term granted her an order opening the default upon condition, however, that she pay to the plaintiff or his attorney the plaintiff's costs and disbursements in the action to date, together with ten dollars costs of the motion. The present appeal, while in form from that order as resettled, is limited by the brief submitted on behalf of the appellant to the provision imposing on her the costs of the motion and the costs and disbursements of the action.
I do not see how the condition imposed on the defendant can be upheld. It is not authorized by any provision of the Code of Civil Procedure, and the judicial records of the State will be searched in vain for a precedent. By section 1769 of the Code it is provided that a final judgment in an action for divorce or separation may award costs in favor of or against either party, but it cannot be doubted that until judgment is finally entered the relation of husband and wife continues, with the obligation resting on the husband to support his wife and to pay for her necessities. The learned counsel for the plaintiff claims, however, that the opening of the default was a matter of favor and, therefore, that the imposition of terms was authorized by section 724 of the Code in the discretion of the court.
We have recently held, however, in the case of Mott v. Mott (134 A.D. 569) in substance that the strict rules relating to defaults should not be applied to actions for divorce, because of the well-known vigilance of the courts to prevent collusion and because of the general interest of the people of the State in the preservation of the matrimonial status of its citizens. As was said in Henderson v. Henderson (83 A.D. 449, 451): 'The rule governing the opening of defaults in ordinary actions involving a mere pecuniary liability should not be rigorously applied to actions of this character.'
Moreover, section 724 of the Code of Civil Procedure expressly limits the discretion of the court to the imposition of 'such terms as justice requires.' Justice never requires a sham, and it would be a mere sham to give a litigant, who is penniless and lawfully dependent upon her adversary for support, the right to a trial of her action, conditioned upon the payment by her to her adversary of a sum of money which she does not possess. In any event it would be unjust to impose upon a married woman the burden of a heavy pecuniary payment as a penalty for the privilege of defending her honor in a court of justice.
The order should be modified by striking out the provision imposing terms.
WOODWARD and RICH, JJ., concurred; BURR, J., read for affirmance, with whom ...