Thrall v. Thrall

CULLEN, J. This is an appeal from an order made by the special term in an action for separation, granting the plaintiff $50 a week alimony pendente lite. The defendant insists that the application should have been denied on the ground that the plaintiff has not a meritorious cause of action, and that, if granted, the amount allowed is excessive, in view of the financial condition of the defendant. The action was instituted in 1891. Thereafter the parties executed a deed of separation, by which the defendant covenanted to pay the plaintiff $50 a week for her support. As long as such payments were made the proceedings in this action were to be stayed, and upon default in such payments it was stipulated that an order might be made by the court granting plaintiff alimony at the same rate. The defendant made default on May 19, 1894, and notice of application for alimony was given on July 5tli. It is a well-settled rule that parties may make law for themselves, which the courts are bound to administer, if no question of public policy is concerned. In re New York, L. & W. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 N. Y. 463, 35 N. E. 650. The provisions of the deed of separation are a complete answer to defendant’s objections both to the alimony and its amount. We do not say that the defendant would be allowed to stipulate himself into prison by agreeing to a sum beyond his power to pay. But there is no danger of that character here, as the defendant, on his own statement, is worth at least $30,000, and the action can be brought on for trial at any time. 592 We are of opinion, however, that the allowance of alimony was ordered to be made from too early a time. It seems settled by authority that alimony pendente lite can, as a rule, be made only for future support, and should commence only at the time of notice of an application for its payment. Collins v. Collins, 10 Hun, 275; Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. 735; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550. There is no provision in the deed of separation increasing the poAver of the court in this respect. For the unpaid weekly allowance prior to the motion for alimony, the plaintiff must recover by her trustee in a suit upon the covenants of the deed, or await final judgment, when the court may make such allowance for this period as may be just. Percival v. Percival, 124 N. Y. 637, 26 N. E. 540. The order appealed from should be modified so as to direct the payment of the alimony to commence on July 5th, and as modified should be affirmed, without costs of appeal: All concur.