Mary P. Mossa, Appellant, v. Rudolph Mossa, Respondent

Mary P. Mossa, Appellant, v. Rudolph Mossa, Respondent. (No. 2.) First Department, January 10, 1908. Husband and wife — separation — order compelling plaintiff to accept' defendant’s offer to provide a home reversed. Although the court in an action for separation has denied alimony pendente lite upon condition that the. defendant serve upon the plaintiff’s attorney within • ten days a written offer to provide a suitable home for the plaintiff and her child, it is without authority to make a further order compelling the plaintiff to accept the defendant’s offer to provide a suitable home. When the court upon-appeal has reversed the order denying alimony as improperly made, such order compelling the plaintiff to accept the defendant’s offer of a home will also be reversed. ' - Clabkb, J., dissented. Appeal by the plaintiff, Mary P. Mossa, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1907, granting a motion to compel the plaintiff to receive the defendant’s offer to provide a suitable home for the plaintiff. ■■ Waldo G. Morse, for the appellant. Frank Walling, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: In this case, which was an action for a separation, the court denied a motion for alimony and counsel fee upon the condition that the defendant serve upon the. plaintiff’s attorney, within ten days, a" written offer to provide a suitable home for her and her child. The defendant served upon the plaintiff’s attorney an instrument whereby lie offered “ tó the plaintiff, Mary P. Mossa, to provide a suitable home for her and our child, and shall, upon the acceptance of such offer by- her, forthwith proceed to furnish 'said home, and shall provide for the maintenance of plaintiff - therein.” That was returned by the plaintiff’s attorney upon the ground that it was impossible for the plaintiff to determine the location of the home offered or whether the same “ is in anywise suitable for her habitation; ”, whereupon the defendant made a motion to compel the plain-.tiff and her attorney to recdive the offer to provide a home; and it was ordered that.the plaintiff or her attorney receive the offer. I do not think there was any authority for. this order. The original order did not require the plaintiff to receive an offer. It only denied the. motion on condition that the defendant served one. The result was, that if this offer was' a compliance with tile condition of the order, the motion stood denied. The offer was ind'efinite. No home was designated.. It was a simple renewal of the offer that had been made in'the affidavit to provide what the defendant was pleased to call a suitable home. As upon the appeal- from the order denying the motion for alimony we have reversed the order -(Mossa v. Mossa, No. 1, 123 App. Div. 400), this order should follow the same course and be reversed, with ten dollars costs and disbursements, and. the motion denied. Patterson, P. J., Laughein and Scott, JJ., concurred; Clarke, J., dissented. Order reversed, with ten dollars costs and disbursements, and-motion denied, with ten dollars costs.