¶1As to the application of the defendant to be relieved from paying the alimony already ordered, I think the court can only relieve him under the provisions of the Revised Statutes (2d vol. 538, § 20). When he makes a disclosure somewhat similar ¡/to other imprisoned debtors desiring a discharge, he simply denies his present ability to pay. The order for alimony was undoubtedly made on due evidence of his means. He has allowed the order to remain for over five months before he was attached, and even until the present time, some two months more, without asking for a modification. He had no right to dispose of his earnings otherwise, and leave his wife and children without the support ordered, and then ask the court as a favor to discharge him. The affidavits, however, disclose a diminution of income, and during his imprisonment he, of course, earned nothing. The order for his commitment may be discharged on his paying the amount due for alimony for which he was committed. The order for alimony during his imprisonment may be considered as suspended, and, on paying such amount, the order for alimony may be reduced to ten dollars a week.
31 How. Pr. 475
Graley v. Graley
The Superior Court of New York City
Decided September 10, 1866
The Superior Court of New York City · decided 1866-09-10
As action was commenced by the plaintiff against the defendant for a divorce, a vinculo matrimoni, on the ground of adultery. The defendant did hot appear or answer. Plaintiff’s attorneys obtained an order of reference to take the testimony and report to the court, with opinion, &c. An ex parte order was made by the court upon affidavits, showing the amount of defendants’ income for alimony pendente lite to the amount of $12.50 per week.
Decided 1866-09-10