Walker Winston, Appellant, v. Lillie Winston, Respondent

Walker Winston, Appellant, v. Lillie Winston, Respondent. Divorce—application for leave to discontinue an action where the defendant sets up a divorce and has married again. Where, in an action .for an absolute divorce brought by a husband, the wife, who has contracted a second marriage, alleges as a defense a decree of absolute divorce obtained by her in the United States District Court of Oklahoma, and the sole question to be decided is whether her present status is legal or meretricious, an order of the court at Special Term denying a motion of the plaintiff for leave to discontinue the action will not be interfered with on appeal, the court being vested in actions for divorce with a larger discretion in the decision of such motions than in other cases, especially where a question as to the proper disposition of a child of the parties to the action is involved. Appeal by the plaintiff, Walker Winston, 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 24th day of May, 1891, denying the plaintiff’s motion for leave to discontinue the action. This is an action for an absolute divorce. The defendant has pleaded a decree of absolute divorce granted her by the United States District Court in Oklahoma. After entering the order of reference, the plaintiff obtained an order to show cause why leave to discontinue should not be granted, which was returnable on the day appointed for the trial before the referee, and which, being opposed, was denied; and it is from the order entered upon such denial that this appeal is taken. John J. Crawford, for the appellant. William A. McQuaid, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: In Winans v. Winans (124 N. Y. 140) it- was held that an application for leave to discontinue an action is addressed to the discretion of the court, and that the rule which governs in ordinary cases is not to be strictly applied in actions for divorce. “ The rights of' the parties tó the record are not alone to be considered; the public is to be regarded as a party and must be so treated by the court, and for-this reason the court is invested with a wider discretion in the control of such cases than of others.” In that case the defend-' ant denied the alleged, marriage, and the court said that it was. not a case where the contract of marriage was admitted, leaving simply the issue of adultery. So here,- it is not a simple issue of adultery, the real point being as to whether the defendant, who secured a decree of divorce in Oklahoma, obtained a legal separation which would justify, her subsequent marriage with the person named as the co-respondent by the plaintiff. There is no contention in the Case as to her living with the person to whom she has been remarried, a Mr. Ludden, the only question being whether that relation is legal or meretricious. The plaintiff insists that the defendant is his wife, and has brought an action to establish that fact. The matter was at issue and the order of reference entered, and on the very day appointed for the trial before the referee the order to show cause was returnable for leave to discontinue. ' It is shown that in the preparation of the case the defendant has been put to considerable expense; and as there is a child in the case, a child of the marriage of the plaintiff and defendant, it is proper that the court, for the purpose of determining the question of the proper bringing up and custody of the child, should determine whether it is to be left witli people who are or are not married. The facts as they are presented left it a question of discretion; and with the manner in which the judge below exercised that discretion we do not think that we should interfere, and, for that reason, that the order appealed from should be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J.,Rumsey, Patterson and Parker, JJ., . concurred. Order affirmed,-with ten dollars costs and. disbursements.