The plaintiff brought an action for separation from the defendant on the ground of desertion and cruel treatment, and the defendant set up a counterclaim, alleging* adultery On the part of the plaintiff and demanding an absolute -divorce. On the 2d day of October, 1908, the court at Special Term awarded the plaintiff alimony at the rate of $15 per week and a counsel fee of $300, and the order further provided “ that in the event that the plaintiff surrender to the defendant the premises 269 East 19th Street, Borough of Brooklyn, City of New York, that, from said date on and during the pendency of the action, the defendant pay the plaintiff’s attorney at -his office as aforesaid, the sum of $25 per week in place and stead of said sum of $15 per week so ordered to ■the plaintiff.”
The plaintiff alleges that the defendant has failed to pay her any alimony since November 8, 1909, and that possession of the premises aforesaid having been surrendered to him on December 1,1909, after said date under the. provisions of the order entered herein on *863October 2, 1908, alimony accrued at the rate of $25 per week instead of the sum of $15 per week, making a total balance due and unpaid her on March 7, 1910, of $410. It appears, however, from the affidavits used upon the motion that the premises mentioned in the order were never surrendered to the defendant; that the defendant owned such premises, subject to a mortgage for $6,000 ; that the plaintiff refused to permit the defendant to borrow money upon a certain.insurance policy upon his life for the purpose of paying the accrued interest, and that, thereupon, the mortgage was foreclosed and offered for sale; that the defendant sought to avoid the sale and procured a purchaser who was willing and able to purchase the premises at $9,750, and that the plaintiff would not. consent to such sale, and that she consented to a sale of the property to her own attorney a't the figure named only on condition that the defendant would divide equally with her the equity in the premises, which was finally done.. We are of the opinion that the original order contemplated that the defendant should have the benefit of the premises as they stood ; that the plaintiff was to be paid-$15 per week with the use of the defendant’s house, and $25 per week without such use, and that when the plaintiff so conducted herself as to deprive the defendant of this resource she waived her right to the increased alimony ; that she never surrendered the premises to the defendant in any such manner as to justify her in demanding $25 per week. The plaintiff not having acted in good faith, having forced the defendant to make- a sacrifice of his resources and compelling him to permit the property to be offered for sale under a foreclosure proceeding, is not in a position to ask for his punishment as for a contempt. She has chosen to rely, not upon her rights under the order, but upon her position as a wife, to exact a. harsh bargain and to lessen the power of the defendant to meet his obligations, and at a time when she is charged with the violation of those obligations which would destroy her dower rights, and it would be an abuse of the powers of a court of equity to punish the defendant under such circumstances.
The order appealed from should be affirmed, without costs.
Hiesohberu, P. J., Jenks, Thomas and Rich, JJ., concurred.
Order affirmed, without costs.