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Moore v. Moore

Supreme Court of New York, Appellate Division

March 10, 1911

GERTRUDE L. MOORE, Respondent,
v.
HENRY G. MOORE, Appellant.

Page 429

APPEAL by the defendant, Henry G. Moore, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of April, 1910, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk's office on the 14th day of April, 1910, modifying or affecting the said judgment and from the judgment as so modified or affected.

COUNSEL

Abraham Snydecker [Roger Foster of counsel], for the appellant.

Benno Loewy [Morgan J. O'Brien of counsel], for the respondent.

MILLER, J.:

This is a suit to enforce the payment of alimony decreed by a judgment of divorce on the ground of adultery rendered May 19, 1902, by the Court of Common Pleas of the county of Philadelphia, State of Pennsylvania. The judgment appealed from adjudged that the said decree be made the judgment and decree of this court; that the plaintiff recover the sum of $28,999.71 back alimony, together with $6,235 interest; that the defendant pay to the plaintiff $333.33 a month alimony, the sum awarded by the Pennsylvania decree, from and after January 19, 1910; that he give a bond for $60,000 conditioned upon compliance with the terms of the judgment; that upon receiving each monthly installment of income from the estate of his father the defendant pay $1,400, to be applied $333.33 as monthly installments of alimony and the balance to the payment of back alimony; that if he fail to make said payment or to give said bond, the plaintiff should be entitled to a further order at the foot of the judgment appointing a receiver, and directing that the defendant upon receiving any installment of income from

Page 430

the estate of his father immediately pay over the same to said receiver, and if the said payment of income be made by check, that he immediately deliver said check, duly indorsed, to the receiver, and that the latter pay $1,000 thereof monthly to defendant and apply the balance $333.33 on future alimony and the remainder on back alimony. Upon the defendant's application for a stay pending an appeal from the judgment, an order was made at the foot of the judgment, upon his consent, making the provisions respecting the receivership operative. The present appeal is from said judgment and order.

The judgment contains provisions not authorized in a judgment creditor's action. The complaint does not allege that the legal remedies have been exhausted and the point was taken at the opening of the case and insisted upon throughout the trial. The judgment can, therefore, be sustained only perforce of section 1772 of the Code of Civil Procedure, and it becomes necessary to construe and to determine the application of that section.

It is as follows: 'Where a judgment rendered, or an order made, as prescribed in this article, or in either of the last two articles, [or a judgment for divorce or separation rendered in another State upon the ground of adultery, upon which an action has been brought in this State, and judgment rendered therein], requires a husband to provide for the education or maintenance of any of the children of a marriage, or for the support of his wife, the court may, in its discretion, also direct him to give reasonable security in such a manner and within such a time as it thinks proper for the payment from time to time of the sums of money required for that purpose. If he fails to give the security, or to make any payment required by the terms of such a judgment or order, whether he has or has not given security therefor, or to pay any sum of money which he is required to pay by an order made as prescribed in section seventeen hundred and sixty-nine of this act, the court may cause his personal property, and the rents and profits of his real property, to be sequestered, and may appoint a receiver thereof. The rents and profits and other property so sequestered may be from time to time applied, under the direction of the court, to the payment of any of the sums of money specified in this section as justice requires.'

The words in brackets were added by chapter 318 of the Laws of

Page 431

1904. It is reasonable to suppose that the amendment was made to meet the decision in Lynde v. Lynde (41 A.D. 280; 162 N.Y. 405; 181 U.S. 183). At any rate the statute as amended should be construed in the light of that decision, and it is well to see precisely what was involved. That was a suit on a judgment for divorce and alimony rendered in the Court of Chancery in New Jersey. The judgment of the Special Term provided that the decree for alimony be enforced 'with like force and effect as if the same were a judgment of this court; ' required the defendant to pay the plaintiff back alimony and $80 a week in the future, and to give $100,000 security for the payment thereof; enjoined him from disposing of any property, except the income thereof, until he made the required payments and gave the said security; and provided for the appointment of a receiver, to whom he was required to transfer his real and personal estate if he failed to pay or to secure the payment of said alimony.

It was decided that the equitable remedies provided by the Code of Civil Procedure for enforcing the payment of alimony applied only to judgments of separation or divorce in actions brought in this State; that the New Jersey judgment did not bring with it into this State the remedies for its enforcement of the State where rendered; and that, in the first instance, the plaintiff could only recover a money judgment for past alimony and issue execution thereon. Mr. Justice GRAY, speaking for the United States Supreme Court, said: 'The provisions for bond, sequestration, receiver and injunction, being in the nature of execution, and not of judgment, could have no ...


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