General
Hollerman vs. Hollerman
1 Barb. 64·New York Supreme Court·1847·NY
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Opinion
Same Term.
Before the same Justice.
Hollerman vs. Hollerman.
It is not a matter of course to order the payment of alimony, in suits for a separation merely.
The court must be satisfied that an allowance would be proper, and that some provision is necessary to enable the wife to establish her just rights.
An allowance will not be made where no ill treatment of the wife, by her husband, is shown, and where it appears that she has left him without just cause, and insists upon living separate from him.
In EauiTY. Motion for alimony, to enable the complainant to carry on her suit against her husband for a separation. The petition sets forth the filing of the bill of complaint, which prays for a decree of separation, on the ground of abandonment by the husband; the defendant’s appearance, and his ability to provide a support for the plaintiff and the means of enabling her to defray the costs and expenses of the suit; and that she is wholly destitute of property.
E. J. Porter, for the plaintiff.
A. Crist, for the defendant.
[MAJORITY — Edmonds, J.]
Edmonds, J.
It is not a matter of course to order alimony on bills for separation merely. The court must be satisfied that an allowance would be proper, and that some provision is necessary in order to protect the wife and allow her a full opportunity to establish her just rights. On the other hand, care must be taken lest her being allowed the means of carrying on the suit may be used for bad purposes. The bill does not complain of any infidelity on the part of the husband, nor that he ill treated his wife while they lived together. It merely complains that he refuses to support her, and in that way has abandoned her. On the other hand, he alleges in his answer, which is sworn to for the purposes of this motion, that she abandoned him, drove him from her, concealed herself from him, and did not return to him for any other purpose than merely to compel him to support her in a state of separation. For aught that appears, she may at any moment return to her husband and live with him, and be supported by him, and that without any suggestion, even, that she would incur any hazard of ill treatment from him. To allow a wife alimony under-such circumstances would be to encourage married women to disregard their conjugal duties. The motion must therefore be denied.