George S. Bailie, Appellant, v. Lydia Conklin Bailie, Otherwise Known as Lydia Conklin Ewing, Respondent

George S. Bailie, Appellant, v. Lydia Conklin Bailie, Otherwise Known as Lydia Conklin Ewing, Respondent. ■ Dicorce—alimony and counsel fees should not be allowed where the answer does not establish a defense. In an action for divorce, brought by a husband against his wife, it is not proper to allow the defendant a counsel fee to be paid by the plaintiff, or to require him to pay her a weekly sum for the support of the child of their marriage, in a case in which the defendant admits the intercourse charged, but alleges iu justification thereof that the acts were committed with her lawful husband, and in support of such position sets up a decree of divorce obtained by her against the plaintiff in the State of South Dakota, and her subsequent remarriage, where it appears that such decree of divorce was void by reason of the fact that the defendant was not served with process and did not appear in the action. Appeal by the plaintiff, George S. Bailie, 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 28tli day of April, 1898, directing him to pay to the defendant’s attorney a counsel fee of §250, and also to pay to the defendant the sum of $10 per week for the support of Lillian M. Bailie, a child of plaintiff and defendant, during the pendency of the action. Edward S. Clinch, for the appellant. Ernest T. Fellowes, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The action is for an absolute divorce. The plaintiff charges the defendant with adultery. The defendant admits the sexual acts charged, but denies that they were adulterous. She alleges that the person with whom these acts -were committed was her lawfful husband. To sustain this position she sets up a decree of divorce obtained by her against the plaintiff in the State of South Dakota, and she avers that, after this decree was rendered, she married the person whom she so claims to be her lawful husband. . It appears from the papers that the plaintiff in the present action was not served with process in the defendant’s action against him in South Dakota, nor did he appear therein. Consequently the court there acquired no jurisdiction over him, and, as to him, the decree of divorce was void. It follows that the intercourse under the subsequent marriage was adulterous. (McGown v. McGown, 19 App. Div. 368.) As such adulterous intercourse stands confessed upon the record, it was not proper to allow the defendant a counsel fee, or to require the plaintiff to pay her a weekly sum for the support of the child of their marriage. The plaintiff, under the circumstances, is the proper custodian of the child, arid the court should not, even impliedly, recognize the defendant’s right in that respect by requiring the plaintiff to furnish her with the means of maintaining the present custody. Applications for alimony and counsel fee should not be granted where the wife either confesses the adultery, or confesses the act charged as such, without lawful excuse. The case of Starkweather v. Starkweather (29 Hun, 488) is not in point. There the defendant made countercharges, of adultery against the plaintiff. “ The issue of his (plaintiff’s) adultery,” said Presiding Justice Smith,, “is in the case, and if the defendant succeeds on that issue, she will make out a complete defense to the action, although the decree of divorce on which she relies should be held to he void.” For that reason the court reversed the order, with leave to renew at Special Term, holding that where the wife denies her guilt or sets up affirmative defenses, counsel fee and alimony will be allowed her, unless the court is satisfied that she is altogether in the wrong, or has no reasonable ground of defense. Here the defendant confesses that she has committed the acts which constitute guilt, and she sets up no affirmative defense which can prevent the legal consequences attaching to these acts. The order should, therefore, be reversed, and the motion denied. Bumsey, O’Brien and McLaughlin, JJ., concurred. Order reversed and motion denied.