Ramsden v. Ramsden. RAMSDEN, RESPONDENT, V. RAMSDEN, APPELLANT.* SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM ; OCTOBER, 1882. §§ 1756, 1763, 1766, 1769. -- In what actions an order requiring the husband to pay alimony or a counsel fee can be granted. What must appear to sustain such order. An action for separate maintenance can be sustained by wife, only in cases where an action for separation would lie. When parties married without the State, what is the requirement as to residence. Construction of subds. 1 and 3 of section 1763. It is only where actions for divorce or for separation would lie that an order can be made requiring the husband to pay alimony pendente lite or a counsel fee, under section 1769; and to sustain such an order, it must be made to appear on the plaintiff's statement that a case of such a nature exist in her favor, and the facts of the case must be such as would lawfully authorize the bringing of the action. [1.", "] An action for separate maintenance cannot be sustained by a wife against her husband, except where the facts are such as would justify a decree of separation; and an action for a decree of separation cannot be maintained where the parties have been married without the State and become residents of the State, unless the residence has been such as is required by subd. 3 of section 1763. [3, 4, 9, 1o] - Accordingly, where an order was made requiring a husband to pay alimony pendente lite and a counsel fee, in an action for separate maintenance brought by the wife, the parties having been married abroad and both having become residents of the State at the time when the action was commenced, the husband having resided in the State for several years but the wife less than one year, Held, that notwithstanding the fact that both parties were residents of the State at the time when the action was commenced, it could not be maintained,[*] because the wife had not been a resident of the State for one year prior to the commencement of the action, a residence of that length, in the plaintiff's situation, being necessary in order to maintain an action for separation; [] that as an action for separation would not lie, the order directing the payment of alimony and counsel fee was unauthorized. [3, "] * The order made by the general term on this appeal was affirmed by the court of appeals, but upon another ground; see post, p. 418. Ramsden v. Ramsden. Subd. 3 of section 1763, provides that, Where the parties, having been married without the State, have become residents of the State, and have continued to be residents thereof at least one year and the plaintiff is such a resident when the action is commenced," an action for separation can be maintained. And although subd. 1 of that section provides that such an action may be maintained, "Where both parties are residents of the State," the plaintiff's case was within subd. 3 and not within the general terms of subd. 1, and in order to entitle her to maintain an action either for separation or for a separate maintenance a residence of one year within the State, before the commencement of the action, was necessary, although in other respects the facts of the case were such as would have entitled her to a decree. [2, 7, 8, 10] The requirement as to residence being clearly and explicitly expressed in subd. 3, that subd. cannot, in such a case, be disregarded because of the general terms of subd. 1, and is to be followed in preference to subd. 1. [', '] (Decided November 24, 1882.) Appeal by defendant from an order of the special term requiring him to pay to the plaintiff, his wife, the sum of $20 per week alimony pendente lite, and to her attorney the sum of $250 as a counsel fee. This action was brought by the wife to procure a judgment requiring the husband to provide for her maintenance and support; and conceded to have been brought for such purpose and for no other. The complaint alleged as the jurisdictional fact, that both the plaintiff and defendant were actual residents and inhabitants of the State at the time when the action was commenced. The defendant was charged with adultery, committed without the State, cruel and inhuman treatment, inflicted without the State, and with abandonment and neglect, and refusal to provide for the support of the defendant. In respect to the charge of adultery, there was no allegation as to the absence of condonation, nor that five years had not elapsed since the discovery of the offense. (See Rule 73 of the General Rules. of Practice.) The relief prayed for by the complaint was: "That Ramsden v. Ramsden. the plaintiff have judgment and decree against the defendant: "First. That the defendant pay to plaintiff a sum certain for her maintenance and support, sufficient to enable her to live and maintain her proper condition in life as the lawful wife of the defendant, and that he be required to give security for the said payment, and for his appearance to abide the order and judgment,herein, and that on the head of said decree, plaintiff be permitted, on any warrantable state of facts occurring subsequent to its entry, to apply for such further and additional sums as may be just. "Second. That she have such temporary allowance, by way of alimony and counsel fee for the proper prosecution of her said action for maintenance, &c., as to the court may seem meet, with costs; and for such other and further relief as this court deems just and proper, with costs." The further facts are stated in the opinion. John V. B. Lewis (Lewis & Beecher, attorneys), for appellant: It is conceded that the only object of this action is to obtain a judgment for separate maintenance. Alimony cannot be granted unless, upon the plaintiff's showing, there exists a right to a divorce or a separation. It is an incident to such actions, and cannot be granted in any other classes of actions, Code of Civ. Pro., § 1769. As the facts do not warrant a divorce, and as the plaintiff purposely abstains from asking for a separation, and the relief demanded is for money only, the action cannot be regarded as one for either a divorce or a separation, 2 Bish. on Mar. & Div. §§ 351, 354-359, and cases cited; Ball v. Montgomery, 2 Ves. Jr. 191, 195; Atwater v. Atwater, 36 How. 431; Douglas v. Douglas, 5 Hun, 140, 144. Ramsden v. Ramsden. Subd. 1 of section 1763, was intended to have an application limited by subd. 3 of that section. Subds. 1 and 2 apply to marriages which have taken place within the State, and where both parties reside, or only the plaintiff resides, within the State. Subd. 3 was expressly intended to apply to foreign marriages, and the requirement as to the time of residence must be complied with in order to confer jurisdiction. It is unreasonable to suppose that subd. 3 was intended solely for the purpose of providing for the remote case of a foreign marriage where the parties have resided within the State for a year and the defendant has then left the State. It would be a strained construction to require a year's residence in this single case. This subd. was intended to provide for just such a case as the one at bar. A marked distinction is to be made between a home and a foreign marriage. The legislature intended, by subd. 3, to prevent the courts of this State from being made a "free mart" of divorce for strangers; and, to prevent abuse, a residence of one year is required as evidence or an intent to remain within the State. In a matrimonial action, and where, as appears by the facts of this case, the parties have lived apart, the common law maxim that the domicile of the wife follows that of the husband does not apply, and the deficiency of the wife's residence cannot be made up from that of the husband. Venee v. Venee, 15 How. 497; Hopkins v. Hopkins, 35 N. H. 474; Schonwald v. Schonwald, 2 Jones Eq. (N. C.) 367, 369; Pate v. Pate, 6 Mo. App. 49; Dutcher v. Dutcher, 39 Wis. 651; Harteau v. Harteau, 14 Pick. 181; 2 Bish. on Mar. & Div. § 125. J. Tredwell Richards (Richards & Brown, attorneys), for respondent: That provision of section 1766 of the Code in relation Ramsden v. Ramsden. to a judgment for separate maintenance, without a separation, is substantially a re-enactment of 2 R. S. 147, § 55, which was taken from 2 R. L. (Revision of 18:3) 200, § 11. Under section 1766 a judgment for separate maintenance may be rendered in all cases where any of the causes specified in section 1762 are shown to exist. There is no legislative intent to introduce a change in this respect, and this provision of the Code should receive the same construction as the prior acts, and under them, an action for separate maintenance could be maintained. Turrel v. Turrel, 2 Johns. Ch. 391; Davis v. Davis, 75 N. Y. 221. If the court has power under section 1766 to render a judgment for both separation and for separate maintenance, or for either a separation or a separate maintenance, it is competent for the plaintiff to demand relief in either form. Such relief as the court upon the facts has power to decree, the plaintiff may pray for in her complaint. If the court can grant maintenance apart from other relief, then the plaintiff may demand that relief alone. The relief asked constitutes no part of the cause of action, it simply defines and limits the character of the judgment sought. All that is essential is, that the prayer shall demand some substantial relief, which the court has power to grant upon the facts alleged. It would be unnecessary to add to a prayer for maintenance a further prayer for a separation, when the plaintiff has no intention of availing herself of any relief under that part of the prayer. To pray for relief which is not really sought is not merely a formal absurdity, but it is misleading to the defendant. A defendant might be willing to allow, without defense, a decree for maintenance where he would defend against a prayer for a separation and custody of children. If the plaintiff can waive her right to a separation and preserve her |