Carrie L. Powers, Respondent, v. Jesse W. Powers, Jr., Appellant

Carrie L. Powers, Respondent, v. Jesse W. Powers, Jr., Appellant. Husband and wife — a wifelimng apart from her husband under a sepa/ration agreement— she cannot be allowed a- counsel fee and alimony in an action for a separation on the ground of abandonment. Where a husband and wife have entered into a mutual" agreement to live separate and apart, under which a trustee has been appointed .for the wife, to whom the husband has agreed to pay a certain sum of money per month for her support and that of the child of the parties, a counsel fee and alimony cannot be granted in an action for a separation brought by the wife because of her alleged abandonment by her husband. Appeal -by the defendant, Jesse W. Powers, Jr., 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 18th day of May, 1898, granting the plaintiff a counsel fee and alimony pending the action. William. Henry Knox, for the appellant. G. E. Waldo, for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action is brought to procure a decree of separation on the ground of abandonment. It appears that shortly after the separation of the parties they entered into a formal agreement whereby the parties mutually agreed to live separate and apart. By this agreement a trustee for the plaintiff was appointed and the defendant agreed to pay to such trustee a certain sum of money per month for the support of plaintiff and the child of the parties, and the custody of such child was given to the plaintiff. It is difficult to see how this action can be maintained under these circumstances. Where the wife consents to the separation there is no abandonment. It is only where the husband deserts the wife without her consent and refuses to give her adequate and proper support, that an action for abandonment will lie. In the case at bar the parties have agreed to live apart, and consequently the separation is with the consent of the plaintiff and _ apparently is in accordance with hesr wishes. There can be no "abandonment under such circumstances. If it is true that the defendant is living in adultery with another person, the plaintiff has a cause of action for divorce, but abandonment cannot be predicated thereon in view of the separation agreement. We think, therefore, that the motion for alimony should have been denied and the plaintiff remitted to her rights under the agreement of separation. Barrett, Rumsby, O’Brien and McLaughlin, JJ., concurred. Order reversed and motion denied, without costs.