#### Grace M. Lake, Appellant, *v.*L. Frank Lake, Respondent.

Third Department,

January 15, 1908.

Husband and wife — divorce — motion to vacate judgment — coercion in forcing wife to obtain divorce — second marriage immaterial — appeal from order giving right to renew motion.

An order .denying a motion “ for want of sufficient evidence without prejudice to a renewal thereof upon further or additional evidence ” is *prima facie*a final determination of the motion upon the facts shown and is appealable where it appears that the "application was opposed and it is not shown that the plaintiff took any position at the hearing inconsistent with a right to appeal.

Smith, P. J., and Cocheaste J., dissented.

On an application to set aside a judgment of divorce as procured by fraud and duress a *prima facie*case is established by an- affidavit which states that plaintiff brought the action at defendant’s request against her own wishes and only after defendant had threatened to abandon her if she refused; that the defendant furnished the plaintiff’s attorney, with the evidence used' and that an agreement to pay alimony was signed at the time the summons was served.

The right of a party to the marriage contract to have it dissolved by reason of the'infidelity of the other party is given as a favor to the injured party and the action must be brought voluntarily.

The fact that the defendant has married again is immaterial, especially where the marriage was contracted in another State within seven days of the entry of the judgment of divorce which absolutely forbade his remarriage.

*It seems,*that upon a mere suggestion of coercion the court should order a reference to ascertain the facts.

*90Appeal by the plaintiff, Grace M. Lake, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 14th day of October, 1907, denying a motion to set aside a judgment of divorce and for other relief.

*Amasa, J. Packer [J. Newton Fiero*of ' counsel], for the appellant.

*Oharles 0. Pratt [Edgar T. Brackett*of counsel], for the respondent.

Smith, P. J.:

Plaintiff’s application was to set aside a judgment for ■ divorce, procured, as she claims, by fraud and duress, on' the part of her husband. The affidavit shows that while they were living together in apparent harmony he came to. her and told her that he wanted her to get a divorce, and that he would furnish the evidence upon which it could be obtained; that if she refused to get a divorce he would abandon her and her child and.go West. ■ She did not wish to get a divorce and told him so. But upon his insistence she finally consented, and consented to take for herself and child the sum of $2¿000, and release all claims for alimony and support. She and her husband lived together as wife and husband until they went to a lawyer’s office and signed an agreement for the allowance of $2,000 in lieu of alimony, and at that time the summons was served upon the defendant'. The husband furnished to the attorney for the plaintiff the evidence upon which a divorce was afterwards obtained. In the decree of divorce it was provided that the defendant should pay- $10 a month for the support of the child. After the decree was finally obtained, the $2,000 provided for in the agreement, was delivered to the plaintiff. The plaintiff alleges that she agreed to take $2,000 upon his insistence that he was poor and could afford to pay no more, but she now alleges on information arid belief that he hac property to the value of $30,000. Within seven days after the decree of divorce was signed he went into the State of Vermont and married again. She asks that the decree of divorce be set aside as having been obtained by fraud and coercion.

*91In the order denying the motion it is stated that the order is denied for want of sufficient evidence, without prejudice to a renewal thereof upon further or additional evidence, with ten dollars costs to the plaintiff.

. The respondent first contends that the order is not appealable because it is not a final order; that by the leave to renew therein given the plaintiff has further remedy before the Special Term, and until that remedy is exhausted she cannot appeal to this eourt. In my judgment the respondent’s contention in this matter is sustained by' authority. *(Robbins*v. Ferris, 5 Hun, 286; *Wells, Fargo & Co.*v. *W., C. & P. C. R. R. Co.,*12 App. Div. 47, 49.) This rule has, I think, been recognized in this court in *Matter of Hudson Water Works*(111 App. Div. 860, 862.) The leave to renew the motion given to her by the order appealed from was a favor-to her, presumptively granted at her request. If she may also appeal while that remains in the order, she is nowhere required to elect which remedy she will pursue, and evidently has both remedies. It seems to me to have - been reasonably held that while that permission remains in the order she cannot appeal. If she would appeal, she should have that provision expunged from the order, or at least should have presented with her notice of appeal a stipulation waiving the benefit thereof. In this matter, however, I am-overruled . by my associates, and am thus brought to the consideration of the merits of the motion.

This order was denied upon the affidavits presented by the plaintiff. Ho affidavits were read or called for on behalf of the defendant. The sole question to determine, then, is whether upon the affidavits of the plaintiff a *prima facie*case is presented for the annulment of this decree.

That such *prima facie*case was thus presented by the affidavits of the plaintiff seems to me to admit of little doubt. The right of a party to the marriage contract to have, that contract dissolved by reason of the infidelity of the other party thereto is given as a favor to the injured party. It was never intended to be used as a means whereby the wife should be forced to dissolve the contract. The court, at the request of a wife so desiring, grants a divorce.by reason of the infidelity of the husband, but that request must be voluntary. . If the wife’s request be coerced, if the judgment be *92obtained upon- a request of the wife, which she has been forced to make, that judgment should be set aside by the court-which granted the same. The -statement of the proposition would seem to be sufficient to its establishment. If aught else be necessary, however, the mischief that would follow any other rule would make such a holding imperative. If any married man can by coercion force his Wife to procure from him a divorce that he may marry another woman, br for any purpose, the -insecurity of that relation becomes at once apparent, and the Legislature might better change the rule and grant divorces on request simply than to leave wives subject to coercion, which would be practiced upon them in order that the husband may get his freedom. Where, therefore, it appears to the court that the wife’s application has not been free - and. unrestrained, the judgment of divorce should be annulled.

In' the case at bar' the plaintiff’s affidavit contained allegations .clearly showing a coercion upon her husband’s part, and that the judgment of divorce- was the result of that coercion. These affidavits appear upon the record unanswered in any way. It may be. that they were insufficient to satisfy the mind of the Special Term justice, but in a case of this nature, where the public has an interest and is a party thereto, the motion should not be denied fti.r insufficient proof. If. necessary, a reference should be ordered, that the facts may be shown more fully. In fact,-it would seem that upon, a mere suggestion of coercion the court would order a reference to ascertain the facts, that it may be satisfied that no imposition has been practiced upon the court and that the remedy which is given to a wife, as her shield has not been used as a sword to slay - her.

The fact that the defendant is again married is entirely without relevancy. The marriage was within seven days of the entry of ' the judgment of divorce, which judgment • absolutely forbade the defendant’s remarriage. - It is not probable, even if it were material, ' that the woman whom he afterwards married was innocent of all knowledge of the provisions of the decree and the circumstances under which it was obtained.

In this case, however, this court should not -.grant this order, although the plaintiff seems to have made *ajprima facie*case thore- ■ for. The defendant should be heard.

*93The order should, therefore, be reversed, and the matter remitted to Special Term for rehearing and decision,

Cochrane, J., concurred; Chester, J., concurred in memorandum ; Kellogg, J., concurred in memorandum in which Sewell, J., concurred.

Chester, J. (concurring)':

If the provision in the order granting leave to renew the motion upon further or additional evidence was inserted therein by request of the plaintiff, and for her benefit, I would agree that she should not at the same time have the benefit of that provision and also of the right to appeal, but there is nothing in this record showing that the provision was inserted at her request or for her benefit. She is here insisting, as she did at the Special Term, that the papers used upon the motion were sufficient to require the granting of the relief she' asked. The court has, however, denied her that relief “ for want of sufficient evidence.”- As it does not appear that *she*asked and - obtained permission to renew, we should not, under the circumstances presented here, indulge in the presumption that she procured *the*insertion of the provision in the order, and she- ought not to -be deprived of the right to have the sufficiency of her papers determined upon appeal, after the denial of the relief she sought at Special Term.

In other respects I agree with the opinion of the learned presiding justice.

Kellogg, J. (concurring):

I concur in the result. The order in question denies the plaintiff’s motion *“*for want of sufficient evidence, without prejudice to a renewal thereof upon further or- additional evidence.” We are holding in the prevailing opinion that this order is erroneous, and that upon the facts shown, in the moving papers the defendant is entitled to relief. We may fairly assume that she disclosed her whole case upon the motion, and that it is not probable that she has further or additional evidence'to produce. The order appealed from is a final determination that upon the facts shown appellant can have no relief. The order recites the defendant as. opposing the motion. We, therefore, assume that the- order and the whole of *94it is made without her consent. If she took a position upon the hearing of the motion which is inconsistent with her right to appeal, that fact might have been shown upon a motion to dismiss the appeal. Ho such fact appearing, she has a clear_ right to a reversal of the erroneous order, which is *prima facie*a final determination of her. lights. The authorities relied upon in the prevailing opinion do not sustain the position for which they are cited. The case of *Robbins*v. *Ferris*(5 Hun, 286) is not fully reported, but it is explained in *Wells-Fargo*& *Co.*v. *W., C. & P. C. R. R. co.*(12 App. Div. 47). From the report of the *Pobbins*case, as explained in the *Wells-Fargo*case, it appears that the defendant moved to vacate an order of arrest, which motion was denied, with ■ leave to renew. He renewed the motion and was again defeated. He then appealed from both orders. The appeal from the first order was dismissed upon the ground that the second order was the final determination of the controversy and the proper order to be appealed from; the second order was affirmed apparently upon the merits. Having renewed his motion pursuant to the permission in the first order, it is clear he had waived his remedy to appeal, and the first order, after the renewal motion was decided, was purely academic and ceased to be of any force. In the. *Wells-Fargo*casé an injunction order gave the defendant permission to move before the judge who granted it, or at Special Term, to vacate or modify it • on the papers upon which it was granted or upon other papers, "and clearly pointed out to tlie« defendant, as its only remedy, to move ..against the order and not appeal from it. ■ It was not a final determination of any question. ■ In *Matter of Hudson Water Works*(111 App. Div. 860) the appellant,- a national bank, the assignee of the contractor, moved to discharge a mechanic’s lien upon a bond"' executed by itself and a surety. The court denied the motion, upon the ground that the bank as assignee could not execute the bond but that it could only be executed by the contractor, which denial was without prejudice to a renewal upon additional papers. Instead of renewing the motion the bank appealed to this court and the order was reversed, the Court holding the order -appealable and the bond sufficient. .

In none óf the cases cited was the question now being considered ' decided,, and I-do not think those cases authority for the proposition *95that this order is'not appealable. The order appealed from is a final determination of the motion and is appealable. The appellant is not deprived of the right to reverse an erroneous order because the order is without prejudice to a renewal upon a different case and upon other papers.

z Sewell, J., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special-Term for rehearing and' decision.