LAUGHLIN, J.:

It is doubtful whether the evidence is sufficient to sustain the judgment. The parties were married on the 11th day of February, 1886, and lived together until the 1st day of November, 1898; but, according to the plaintiff's testimony, they ceased to cohabit after the spring of 1895. The only evidence concerning the conduct of the defendant toward the plaintiff subsequent to the 19th day of February, 1896, is the uncorroborated testimony of the plaintiff herself. Her testimony with reference to the period prior to that time shows different acts of cruelty and violence of an aggravated character on the part of the defendant toward her; and as to many of the incidents, but not as to any assault, she was corroborated by a nurse who was employed by them during the months of September and October, 1888, and by her lady's maid, who was in her employ from March, 1894, until February 19, 1896. It appears, however, that she never left the defendant on any of these occasions; that she soon forgave his conduct, and in the main they lived happily together. Great affection was manifested by each for the other in their correspondence throughout their married life. The final quarrel occurred while they were living at Garden City. It arose over a charge which she made that he had misappropriated some of her money. She says that on that occasion "he became so violent * * * that he grabbed me by the throat and used such language that I told him I should never live with him again under the same roof;" but it appears from her own testimony that she lived with him for two weeks thereafter, and then returned to New York and took up her residence with her mother, and he returned to New York and took an apartment at a hotel. From this time — November 1, 1898 — until the commencement of the action in May, 1900, while they have not lived together as man and wife, their relations have been otherwise most friendly and intimate. He has frequently visited her and the children, and on occasions has sent her flowers, which she gracefully accepted and cordially acknowledged by letter. She has accepted his invitation to visit him and the children when they were with him, stopping at the same hotels and occupying apartments near his. She has called to see him at his hotel in this city, with no apparent object except a friendly visit, and on one occasion, not finding him there, ordered and charged her lunch to him, leaving a pleasant affectionate note for him regarding it. The record fails to show that anything has occurred during this time to alter the plaintiff's regard and friendship for the defendant. It is incredible that she would have corresponded with and visited the defendant as she did, and permitted him to call upon and correspond with her, if she then had any intention of bringing this suit. In brief, if it be possible to waive and condone offenses of cruel and inhuman conduct without actual cohabitation, the evidence would seem to require that inference in this case.

It is, however, unnecessary to decide this question at the present time, for a new trial must be ordered on another ground, and additional evidence may be introduced of such a character as to materially change the aspect of the case in this regard.

The judgment deprives the appellant of property and of contract property rights, and his exceptions fairly present the question as to whether his property has been taken without due process of law, within the meaning of section 1 of the 14th amendment to the Federal Constitution. The defendant did not institute the action and he did not ask that it be tried. The plaintiff forced it to trial against his will, and a judgment resulted which deprived him of property without his having been heard in defense of his rights. This the Supreme Court of the United States has quite recently unanimously decided may not be done. ( Hovey v. Elliott, 167 U.S. 409.) Prior to that decision, it had been declared by numerous adjudications in this jurisdiction that in an equity suit the answer of a defendant who has been adjudged guilty of contempt in failing to obey the mandate of the court might be stricken out. ( Walker v. Walker, 82 N.Y. 262; Brisbane v. Brisbane, 34 Hun, 339; Quigley v. Quigley, 45 id. 24; Gray v. Gray, 84 id. 347; Knott v. Knott, 6 App. Div. 590. )

In the exhaustive opinion delivered by Mr. Justice WHITE in Hovey v. Elliott ( supra) the decision of our Court of Appeals in Walker v. Walker ( supra) is considered and, in effect, overruled. The doctrine of the cases in our courts, to which reference has been made, is not reconcilable with the decision of the Supreme Court of the United States in Hovey v. Elliott. There is no room for distinction; and it being a Federal question, it is our duty to follow the Supreme Court of the United States. ( Duncomb v. N.Y., H. N.R.R. Co., 84 N.Y. 190; Hintermister v. First Nat. Bank, 64 id. 212.)

The reason upon which the rule expounded by the Supreme Court is based would seem only to forbid striking out a party's pleading on account of his contempt, and then refusing to recognize his right to be heard, and permitting the adverse party to proceed virtually ex parte and obtain some relief, by judgment or otherwise, affecting his property or property rights. It manifestly does not apply to cases where the party in contempt is the moving party and is praying for some relief at the hands of the court in which he is in contempt. In those cases the court of equity may refuse to hear him until he purges himself of the contempt. Such are the cases of Brinkley v. Brinkley ( 47 N.Y. 40, 49) and Gross v. Clark (87 id. 272), the former of which is referred to with approval in Hovey v. Elliott; and the rule is also thus stated in Hovey v. Elliott ( 145 N.Y. 126, 138).

The orderly administration of justice required that the learned trial judge acquiesce, as he did, in the decision of the Special Term, that being a court of co-ordinate jurisdiction, in striking out the answer. He very properly left the validity of that order to the determination of the appellate court. Under the decision of the Supreme Court of the United States the plaintiff may not bring the case to trial and insist that the defendant shall not interpose any defense thereto. Consequently, under these circumstances, the order of the Special Term in striking out the answer should have been treated as a nullity, and the exclusion of the defendant's evidence was erroneous.

The judgment must, therefore, be reversed and a new trial granted, but without costs.

VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.

Judgment reversed and new trial ordered, without costs.