#### Eliza Cullen, Plaintiff, *v.*William Cullen, Defendant.

(Supreme Court, New York Special Term,

March, 1898.)

Decree for a separation — Alimony — Prior adjudication.

.Where the Court of Appeals has declared, upon the. criminal prosecution of 'a husband as a disorerly person for his failure to support his wife, that she has, under a decree of separation which was considered upon the appeal, a right to apply for alimony upon proof of la change in her husband’s circumstances and. that' that right “ is open to her *81still,” the Supreme Court must accept the statement as controlling in the civil action, and, upon proof of a change in the husband’s circumstances will award her alimony, having regard, however, to the fact that the criminal prosecution proved to be groundless, and involved the husband in expense.

Motion for alimony.

George W. Dease, for motion.

Merrill *&*Rogers, opposed.

Freedman, J.

In the course of the opinion delivered by O’Brien, J., in People ex rel. Comrs. of Charities, v. Cullen, 153 N. Y. 629, it was emphatically declared that, under the decree of separation in this action, the remedy of applying for alimony in view of the change of the pecuniary circumstances of the defendant *“*has always been open to the wife and is open to her still.” I do not feel at liberty to disregard that emphatic declaration as *obiter dictum.*

The attention of the court was, by the brief of the counsel for Mr. Cullen, directed to the decree of 1883 and it was claimed that the obligation of the husband to support the wife was terminated by that decree. The attention of the court was also directed to the decisions in Erkenbrach v. Erkenbrach, 96 N. Y. 456, and Kamp v. Kamp, 59 id. 212. Notwithstanding the points thus urged, it was said that the remedy of applying for alimony, upon proof of a change in the pecuniary circumstances of the defendant, has always been open to.the wife and is open to her still. That statement undoubtedly was made in view of the provision of the decree, permitting such an application to be made upon proof of a change in the pecuniary circumstances of the defendant.

I feel, therefore, bound to accept the statement referred to as the law applicable to the case at bar, although it may be difficult to reconcile it with the more recent decision of the Court of Appeals in Walker v. Walker, 155 N. Y. 77.

The question then remains whether a case has now been presented which calls for an award of alimony..

It appears, as it appeared before the.Court of Appeals, that the age and physical condition of the defendant are such as to render him incapable of earning anything towards the support of his wife, *82from whom he has been separated for about thirty years. The proof, however, establishes that he has some real property, none of which he can sell or mortgage- because of the plaintiff’s contingent right, of dowér, and which is in a dilapidated condition. His income from it does not exceed $1,000 a year, and most of 'it, if not all, is needed for his own support: Upon a consideration of all the circumstances -disclosed, and especially in view of the expense to which he was unjustly put by the institution of groundless 'criminal proceedings against him, 1 am of the opinion that the alimony to be awarded , should not exceed three dollars per week .from the service of the order to be entered hereon.

.Plaintiff’s motion is granted to that extent.

3£otion granted.