Opinion
August Term, 1898.
Order reversed and motion denied.
The general rule undoubtedly is to award alimony in cases like the present, and almost as of course, where the defendant denies her alleged guilt on oath. It is well settled that the court will not try the merits upon conflicting affidavits. This rule, however, is subject to qualification where it clearly appears that the success of the husband in the action is inevitable. If the undisputed or unexplained facts show that the wife has no reasonable hope of success in her defense, the court will not compel the husband to support her, even pending the action. The wife in applying for temporary alimony, if a defendant, must always show that she has a substantial defense to the suit. "This is required," as said in Nelson on Divorce and Separation, 798, "to prevent imposition upon the court and to protect the husband." In the present case the defendant's mere general denial of guilt is plainly false. It can only have been interposed to deceive the court and to secure, unmeritoriously, the benefit of the ordinary rule. It appears from the affidavits of several apparently credible witnesses that the defendant has been living in open adultery with a man named Nahm. It is beyond question that she lived with this man as his wife at Miss Hoffman's house in New York city. She herself rented the room in this house, which she subsequently occupied with Nahm. Miss Hoffman and her sister, Mrs. Freeman, ultimately suspected her relations with Nahm, and compelled her to remove from their premises. She was then arrested upon a charge made by Mrs. Freeman of malicious mischief in the alleged destruction of the furniture and carpets in the house. In the examination before the police magistrate testimony was given showing that she had lived with Nahm as his wife in the house in question. The defendant then testified upon her own behalf, but failed to deny the accusations with regard to Nahm. The latter was also examined and admitted that, although he was not the defendant's husband, he had lived with her in Miss Hoffman's house as her husband, and that he had there passed under the name of Stearns. All this appeared in the affidavits below, yet the defendant permitted these affidavits to remain undenied nor did she ask leave to rebut or explain them. On the contrary, her learned counsel seemingly contented himself with the argument that these overwhelming affidavits were defective in a singular particular, namely, in not adequately identifying the defendant as the Mrs. Stearns who lived in Miss Hoffman's house and who was examined in the Police Court. This criticism is without merit. The affiants positively depose that the person of whom they are speaking is the defendant in this action, and Mrs. Stearns has not ventured to depose to the contrary. Her identification is clearly and circumstantially shown, and her guilt follows beyond all reasonable doubt. To compel the plaintiff to support this woman pendente lite, under the extreme circumstances disclosed, would be to shut our eyes to demonstrated guilt, and to permit an abuse of the wholesome rule to which we have referred. That rule is justly applicable to honestly contested cases. It should not be extended to cases which are dishonestly contested, and where the denial of the charges is but formal and general, leaving the actual facts which establish guilt undenied and unexplained. The order should, therefore, be reversed, and the motion denied. Van Brunt, P.J., Rumsey, Ingraham and McLaughlin, JJ., concurred.