3 Bosw. 650 16 N.Y. Super. Ct. 650

Catharine N. Forrest v. Edwin Forrest.

1. Where a decree of divorce has been pronounced in favor of a wife, and a reference has been ordered to determine the amount of permanent alimony to be allowed to her and the manner in which it shall be secured, if the referee unreasonably delays proceeding in the reference, or grants to the defendant an adjournment of the hearing for an unreasonable time, the *651Court will vacate so much of the order of reference as designates the referee, and will appoint another with directions to proceed in the reference.

2. The intention of the defendant’s counsel to visit Europe, either on business or for pleasure, is no sufficient ground for adjourning the reference for three months and upwards, to enable him to return and resume the conduct of the reference.

3. If the business of the referee himself be such that he cannot proceed with reasonable dispatch in the hearing and decision of the matter referred to him, the Court would relieve him and appoint another.

4. Accordingly in this case, when the hearing before the referee was begun in June, 1859, and near the close of June the referee, on motion of the defendant and against the will and objection of the plaintiff, adjourned the .reference to about the middle of October, partly on the ground that the defendant’s counsel was about to leave for Europe to be absent for three months, and partly on the ground that a vacation and relief from the duty of trying the cause was proper: Held, that the delay to the plaintiff was unreasonable, and that, unless the defendant consented to vacate the order of adjournment, and proceed with the reference, the order appointing the said referee should be vacated and another referee be appointed with directions to proceed without delay.

5. Pending such’a reference it is proper to allow to the plaintiff a reasonable sum for the expenses of the reference and also temporary alimony to be paid by the defendant until the amount of permanent alimony shall be fixed and ordered, although no order for temporary alimony was made before the decree of divorce was pronounced; and it is no reason for withholding such temporary alimony, that at one time since such decree the earnings of the plaintiff by her personal exertions were more than sufficient for her support.

(Before Woodruff, J.)

At Special Term,

argued July 14th;

decided, July 19th, 1859.

This was a motion by the plaintiff for an order requiring the referee (appointed herein to inquire into and determine what would be a suitable amount to be allowed to the plaintiff for permanent alimony, and how the same should be secured,) to proceed in such reference, or that another referee be appointed, in his place,, to proceed therein. And that an order be also made requiring the defendant to pay her a suitable sum for the expenses of the reference, and a temporary allowance for her support.

The history of the case may be gathered from the report thereof in 6 Duer, 102, and from the report on the succeeding pages of this volume (p. 661).

*652The verdict herein in favor of the plaintiff was rendered on the 26th day of January, 1852; and a decree of divorce was pronounced on the thirty-first of that month. The defendant appealed, and, at the Term of July, 1856, the decree of divorce was affirmed, and the order of reference was made to fix the amount of permanent alimony. Pending the suit and down to November, 1851, the defendant voluntarily paid to the plaintiff $1,500 a year for her support; after which, he ceased making any provision for her, and she resorted to the stage to obtain a livelihood. It appeared by affidavits that during a visit to California, in 1853, and thence onward, for two or three years, she received from theatrical performances many thousand dollars, and greatly more than was necessary for her support. This was not denied by the plaintiff; but she alleged that those receipts had been expended, and she was now destitute. The affidavits also stated that the defendant is worth upwards of five hundred thousand dollars. No order for temporary alimony had before been applied for in the action.

Neither party brought on the reference until the 9th of June, 1859, when, upon the plaintiff’s notice, the hearing commenced. The reason assigned by the plaintiff for delay on her part, was mainly the want of money, and reluctance to urge her counsel to devote themselves to her case amid other pressing engagements, and a reason urged for proceeding in it now, was the intermission of the regular sessions of the Courts, and the readiness of her counsel to devote the necessary time to the present prosecution of the reference.

A motion was made by the defendant, on the ninth of June, for a commission to examine witnesses in California, which was denied {post, p. 661). The defendant appealed, and, on the twenty-fifth of June, applied to the General Term to postpone the hearing of the appeal to- October, chiefly on the ground 'that his counsel was about to leave for Europe, to be absent during that interval. This motion was denied by the General Term. But the referee, on the defendant’s motion, and notwithstanding the plaintiff’s objection, adjourned the reference, until about the middle of October, on the ground that such counsel was about to go to Europe, and it appeared that he was influenced also by the consideration that the months of July, August *653and September were regarded as vacation months, in which some of the Courts in this city held no Term for the trial of causes.

Thereupon the plaintiff made the present motion.

Chas. O'Conor, for the plaintiff, in support of the motion.

James T. Brady, for the defendant, in opposition thereto.

Woodruff, J.

—The only questions remaining to be settled in this case are the amount which should be allowed to the plaintiff for alimony, and the manner in which that should be secured to her. To determine those questions we have ordered a reference. The plaintiff is left by the defendant, her late husband, entirely destitute. Although entitled to share justly and equitably the income of one, who, according to the papers before me, has a fortune of half a million of dollars, she is left to her own personal exertions to obtain the necessaries of life.

And this, when it is entirely certain that her late husband owes her, and must be decreed to provide her, a comfortable support.

This is true even though we should assume him innocent, and presume that such innocence may appear on a reversal of the judgment of this Court, for if instead of being divorced, he were her husband still, he is bound to support her.

So that whatever be the result of this struggle on his part, a comfortable support is due and must be decreed to her, or1 be furnished to her by him, in any event.

For the purposes of the reference ordered, he is to be deemed, as he has been adjudged, guilty; and she is to be deemed entitled to alimony.

It is true that she has not heretofore urged her claim with the eagerness which might have been expected, but her delay is explained, and certainly that delay has not operated to the defendant’s disadvantage. If he had deemed the delay undesirable, he could have moved the reference himself.

Now, she has found means to press her claim, and counsel willing to devote their time to its prosecution; and she presents herself apparently, and according to her statement, in need of that support to which she is clearly entitled.

*654Her first endeavor has been so far défeated that, against her objection and that of her counsel, the hearing is adjourned for three months to enable the defendant’s counsel to go to Europe.

She, in a state of destitution, dependent hitherto upon the good will of her counsel and compelled to await their convenience, is thus postponed,—until it is in a high degree probable that their engagements will again deprive her of their services,— in order that the defendant, who is abundantly able to employ any desired number of counsel, may not be subjected to inconvenience while his counsel is absent for months from the city.

This seems to me manifestly unjust.

The suggestion that the months of July, August and September are vacation months, in which it is the right of the defendant to have the case suspended, is to me a novel one. Although the arrangement of the Terms of Court are so made that, so far as possible, the comfort of jurors, witnesses and suitors may be promoted by relieving them from attendance upon crowded Court-rooms in the heat of summer; yet, the period is not uniform in the various Courts, and nothing is more common than for references to be sought and granted for the very purpose of avoiding the delay which the interruption of the monthly sessions of the Courts for trial would otherwise cause.

For other purposes, the Courts are open, and one or more of the Judges are in daily attendance.

But in expressing the opinion that the delay which would be caused to the plaintiff is unjust, I state not my own opinion only, but the declared judgment of the General Term. A motion to postpone to October the argument of an appeal, involving the most important question to the defendant, which is connected with this reference, was denied, though urged upon the very grounds on which the postponement of the reference is now sought to be justified. The Court thought the plaintiff ought not so to be hindered in the obtainment of an obvious right, and to be left destitute of the means of support, while the defendant’s counsel was pursuing either pleasure or business in Europe.

I am clearly of that opinion in regard to the reference itself. And the views which I entertain in regard to the proper subjects of inquiry on the reference (and which, on a former motion, I have expressed), lead me also to the conclusion that the refer*655ence ought not to be protracted beyond a very few sittings, and that any counsellor of ordinary capacity, skill and learning is abundantly competent to protect the defendant’s interest on this reference, whether he has been familiar with the prior stages of this litigation or not.

I entertain the most sincere respect for the fairness, good faith, and impartiality of the referee, and have unquestioning confidence that he has done what he deemed in entire accordance with the right of the defendant, in adjourning the reference. But he erred I think in not considering sufficiently the plaintiff’s right to have her support provided, when her right to a support had been already settled by a decree, and the amount alone remained to be fixed.

The Court would not of course compel a referee to act, against his inclination and at a sacrifice of personal convenience which he felt unwilling to make, when there are, no doubt, many who are not only willing but desirous of rendering such services.

Whether the Court can regularly make an order vacating the order of adjournment already made by the referee may be open to question. That the Court can vacate the order of reference and direct a reference to some person whose engagements are such that the reference will be proceeded in with reasonable dispatch is not doubtful.

If the present referee can so arrange his business as to continue the reference, and the defendant consents to vacate the order of adjournment, that the reference may proceed without further delay that course should be taken; but if not, then the order of reference should be vacated and a reference be directed to some suitable person who will attend and hear the parties and their proofs at once.

In relation to the application for alimony pending this reference, there seems to me to be no reason why it should be withheld; on the contrary the considerations above suggested are strong' reasons why it should be granted. Not only so; it is the uniform practice of the Court to grant it without special reasons.

The circumstance that six or seven years ago in San Erancisco the plaintiff received considerable sums as the proceeds of theatrical exhibitions under her management, becomes of slight *656importance in this connection, when it appears that the plaintiff is now destitute and unable to pay the expenses of the reference.

I perceive no just reason why the defendant should have at any time withheld the allowance, which he voluntarily made to her down to Kovember, 1851.

As already suggested his obligation to pay is not, as the case now stands, in any degree doubtful. And it will be strange if when the permanent alimony shall be fixed there be not a very large sum in arrear which it will be the duty of the defendant to pay. With him therefore the question whether he shall now pay something towards the plaintiff’s support pending the reference and something towards the expenses, is only a question of time, and to my mind it is reasonable that the plaintiff’s wants should receive some consideration; and to require the defendant to pay something now, out of the income of an estate of which the principal is said to amount to five hundred thousand dollars, is only requiring him to pay now what it seems to me certain he must pay hereafter, unless the death of the plaintiff, before any sum is fixed, should operate to release him.

The circumstance that the plaintiff has not made -the application sooner, is to his advantage. Had the petition been presented three years ago it must have been granted. He should not complain that it has been delayed.

On this branch of the application the order will be that the defendant pay for the support of the plaintiff at the rate of two hundred dollars per month, beginning with the presentation of this petition. And that he advance to her fifteen hundred dollars towards counsel fees and expenses of the reference.

It will be necessary that the order to be entered be settled on notice; and the details, conforming to the directions above indicated, as well respecting the continuance of the reference as the making of the payments will then be settled.

The consent of the referee to proceed forthwith in the reference, and the consent of the defendant to vacate the order of adjournment having been filed, an order was entered that the reference *657proceed and that the defendant make the payments to the plaintiff in conformity with the foregoing opinion.

This motion was made and decided, after the appeal in Forrest v. Forrest, reported (post, 661) had been argued, and while it was held under advisement.

Forrest v. Forrest
3 Bosw. 650 16 N.Y. Super. Ct. 650

Case Details

Forrest v. Forrest
Decision Date
Jul 19, 1859

3 Bosw. 650

16 N.Y. Super. Ct. 650

New York



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