#### Simonds *v.*Simonds.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

Divorce—Allowance—Renewal of Application.

Though by Code Civil Proc. N. *Y.*§ 1769, it is provided that the court may, on motion of either party to a divorce case, make, and from time to time modify, an order for an allowance for counsel, alimony, or expenses of trial, yet after an order has been made granting defendant an allowance for counsel and expense, but refusing her prayer for alimony, she cannot thereupon, on the same grounds, move before another justice, at a different special term, for additional allowance, and for that part of the relief which was before refused, without a showing of a subsequent change of circumstances materially affecting the rights of the parties, and furnishing grounds for the granting of the relief which did not previously exist. ■

Appeal from special term, Montgomery county.

Action, by George O. Simonds against his wife, Soudie M. Simonds, for a divorce on the ground of adultery. Cross-bill by defendant on the same ground. Defendant filed motion for alimony and counsel, which was denied, with leave to renew. On second motion an order was made refusing alimony, but allowing $150 for counsel and expense. Thereupon another motion for alimony, support, and additional allowance was granted, and plaintiff appeals.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*John S. Warren,*for appellant. *Edgar Hull,*for appellee.

Learned, P. J.

This is an action for divorce on the ground of adultery. The defendant denies the adultery, and also alleges adultery on plaintiff’s part. The defendant made a motion, December 3, 1889, for alimony and counsel. The motion .was denied, with leave to renew. The .learned justice (Judge Putnam) wrote an opinion explaining his reasons. In pursuance of such leave the defendant made a second motion of the same kind, before tho same justice, January 7, 1890. numerous affidavits were used on each side. *607The learned justice wrote another opinion. He denied the motion for alimony, but granted the allowance of $150 for defendant’s expense in conducting the action and her defense. Thereupon the defendant gave notice, February 13, 1890, for another motion, to be heard the 25th of February, to require plaintiff to pay her $15 per week for support of herself and her child, and for an additional sum of $250 to procure evidence and witnesses and counsel in the action. That motion was heard before Justice Fish. Numerous affidavits were again read on each side. The learned justice, in his opinion, states that the sum of $150, theretofore allowed, will fall short of the necessities of the case. An order was made that plaintiff pay an additional sum of $250 for counsel, and, for the failure so to do, that his complaint be struck out; that he also pay $100 in 30 days for the support of defendant’s child, and $25 per month thereafter. And the question of the allowance of alimony was reserved for further consideration.

It is evident that no change of circumstances had arisen since the decision of the second motion which materially affected the rights of the parties. This third motion was practically an appeal from the decision of Justice Putnam. He had determined the amount deemed necessary for counsel fee and expenses, and he had denied the motion for alimony. His order, though dated the 7th, was entered the 20th, of January. It was not proper, therefore, for the defendant, in the short time of two weeks thereafter, to renew this motion, at least without showing that some new circumstances had arisen. The place of trial is in Washington county. The first and second motions were made in Saratoga; the third, in Fonda. It would seem as if the defendant was unwilling to renew her application before the same justice who had heard the first and second motions. The reason given, in defendant’s affidavit on this last motion, why she renews it, is that, as alleged, the plaintiff’s affidavit used on the second application is so full of falsehood that she believes the court was misled. That alleged falsity must have been known on the hearing *of*the second application. The defendant could then have asked leave to have the motion stand over, that she might serve other affidavits; and that request would, undoubtedly, have been granted. But she proceeded with her motion, and she retains the benefit of the allowance then granted, and by this third motion seeks to increase it. Of course, when circumstances change, it may be proper for the court to make new orders in respect to alimony and allowances. But this rule does not imply that the party dissatisfied with the discretion exercised by one judge may apply to another to exercise his discretion on what are substantially the same circumstances, as a buyer might go to another shop to get for the same money an article which he liked better. We have examined the affidavits used on all of these motions. They are contradictory, and, evidently, some of them are false. It is not best for us to comment on them. It is enough to say that the right in the court to make and modify from time to time such orders as these (Code, § 1769) does not justify the defendant in the practice followed in this case. The order of J ustice Putnam had denied the matter both as to allowances and as to alimony. The defendant could have reviewed it op appeal, but an appeal does not lie to another special term. If it did, the plaintiff might now move before Justice Putnam to reduce the allowance and alimony granted by Justice Fish. Order reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.