In re Thrall

VAN BRUNT, P. J.

It appears that on the 12th of June, 1891, the appellant brought an action against her husband, Edwin A. Thrall, in the supreme court, the venue being laid in the county of Kings, to obtain a separation from her husband, upon the ground of cruel and inhuman treatment. The defendant in said action duly appeared, and such proceedings were had that on the 31st of July, 1894, an order was made in said action allowing the appellant herein the sum of $50 a week for her support and maintenance for and during each week from the 12th of May, 1894, until the final termination of the action or the further order of the court. An appeal having been taken, this order was modified byproviding that the alimony should commence on the 5th of July, 1894. On or about the 27th of January, 1896, the attorney for the appellant made application to this court, in said action for separation, for an allowance for counsel fee, and such application was granted. On the 18th of March, 1896, an order was made directing Thrall to pay to' the attorney for the appellant the sum of $100 within two days after service of a copy of the order upon said Thrall. In January, 1896, an application was also made in said action for an order directing the defendant to give reasonable security for the payment, from time to time, of the alimony pendente lite awarded to the appellant in said action by the aforesaid order of this court, dated July 31, 1894. On the 30th of January, 1896, Thrall, the defendant in the action for separation, made a general assignment for the benefit of creditors to the respondent herein, Adolph Ludeke. The last payment of the $50 a week alimony pendente lite under said order of July 31, 1894, was made by said Thrall on the 25th of January, 1896. On the 7th of June, 1896, the action for separation was duly discontinued. On the 20th of June, 1896, the appellant presented to said assignee her .claim, in writing, for alimony under said order of July 31, 1894, from said 25th of January, 1896, to the 6th of June, 1896, the day preceding the discontinuance of the separation action, amounting in the aggregate to the sum of $950, and claimed a preference, and to be entitled to the payment of such amount; and on or about the 21st of May, 1896, the attorney for the appellant presented his claim to said assignee for the $100 counsel fee ordered to be paid to the attorney by the order of March 18, 1896. Neither of these claims having been paid, application was made for an order directing said assignee to pay to the appellant or her attorney the sum of $950 for alimony, and to her attorney the sum of $100 for counsel fee. This motion coming on to be heard, it was ordered that the assignee pay to the attorney the sum of $100 out of the funds of the estate of Thrall now in his hands, as such assignee; and the application for an order directing the payment of the alimony was denied, and from such denial this appeal is taken.

It is difficult to see upon what basis the appellant can found any claim. It is clear that she has no right to compel the defendant in the divorce suit to pay this alimony, the action having been discontinued. All proceedings to' compel the payment of alimony pendente lite must be taken in the action in which the order for alimony was granted; and, there being no action, the order for the payment of alimony necessarily fell. The appellant certainly can enforce no claim against the defendant in that action for alimony alleged to have accrued during its pendency; and, if the appellant has no claim against the defendant in the action for separation, she has none against his estate, because it is only the obligations which have matured, and which are existing at the time of the application, that can be enforced against the estate. If proceedings were taken to enforce the collection of this alimony pendente lite against the defendant, the discontinuance of the action would clearly be an answer to such application. All intermediate, preliminary, and provisional orders necessarily fell when the action ceased to exist. It would have been the same had the complaint been dismissed as to the defendant, in which case it certainly could not be claimed that provisional remedies survive, although judgment had been rendered in favor of the defendant.

It seems to us that, it being clear that the appellant could not enforce the order for the payment of alimony against the defendant in the divorce suit, her application in this proceeding was properly denied, and the order should be affirmed, with $10 costs and disbursements.

WILLIAMS and PATTERSON, JJ., concur.