The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-26
LUCCA's DIVORCE SUIT.
Baron Won Rahden's Rights Judictally
Recognixed-An Amended Answer
Judge Donohue's Decision.

Baron Won Rahden's Rights JudicialIy
RecoSnixed-An Amended Answer
Judge Donohue's Decision.
The effort made by Nine. Lucca, or rather by her
counsel in her behalf. to put an estoppel to any
further litigation by ner former husband, Baron
Won Rahden in connection with their cross divorce
suits has not been altogether successful. Upon the
motion made few days since in Supreme Court,
Chambers, be ore Judge Donohue, to this effect
Judge Donohue gave, yesterday, his decision, as
also upon the motion interposed Tor the Baron TO
strike out her answer that he had obtained decree
Of divorce in Berlin He denies the former motion
and grants the latter, and thus leaves clear
track for the Baron TO pursue his tigious course,
and on the other hand compels some other answer
than the one made by Nine. Lucca The decision
is embraced in the following opinion, witch we
give in full.
OPINION OF JUDGE DoNoHuE.
In this case tue facts upon which both motions
depend are simple. The parties were married In
Prussia, and IN March, 1873, the plaIntin COM
menced an action IN this Court for divorce on
the ground or the defendants adultery, and by
decree (Which the General Term has modified, al
loving the defendant TO make a delence) obtained
in May, 1873 that divorce. That case, therefore,
now stands with decree against the defendant
First adjudgng him guilty Of adultery; second,
prohibiting him from marrying again; third, glv-
ing the custody OF the only child OF the parties to
tine piantin. Under the leave given to the plaintiff
to serve supplemental complaint sne has added,
among other things the allegation that the deien-
dant, after she obtained her divorce, proceeded
against her, and, on full appearance by her At
torney, has obtained from her divorce on account
OF her wlu and entire abandonment OF him. The
plaintiff now sues Tor an order for a perpetual
stay against the defendant on the ground that he
has obtained a divorce; that there is nothing i'm
portant TO continue the suit for, and that 1t can
only be continued to crafty DEFENDANTS caprice
and inlure plaintiff who is an artist The de-
supplemental complaint, far as it sets up his
decree and her allegations IN regard to his Oh
jecs. In regard to the PLAINTIFFS notion can see
no ground or sustaln.ngit. The decree that, BY
her notion she seeks to make final, prohibits the
defendant from marrying again, and, while 1t may
be said this only Affects her in this state the
swer Is, he is entitled 70 have that removed he
is not guilty. Again, that decree takes from him
the right to the custody OF her child. In this, l
think. the decree inicts on him such loss that he
has the right TO be heard before he hears it. Again,
the decree holds him guilty OF what this State does
punishment in the prohibition in the decree. Ii
seems to me. therefore, That the defendant, for
eigner appealing to courts Tor justice against
sentence against him IN his ABSENCE asks but simple
justice. The Court, 1t seems 10 me, mas gone a.
lar as II can already in sustaining the decree &c
the extent IL has To deny to this defendant the
simple Justice he asks would be harsh. That II
may bring trouble to the plaintiff IS true; but had
she waited few days longer before she acted on
her decree against a man whom she did not know
had Information OF it 1t would nave saved her this
trouble. Again, she has, on suit commenced
after got her decree, appeared and failed TO set
up her rights on her decree here. Can she now be
permitted after having an opportunity to do so
ana aiter apparently aoandohing thIs Iien,,
now attempt TO reclaim itg 1t seems TO
me not Her motion must therefore be de-
MED. The conclusion would seem 10 fol-
low that the Defendants motion must be
granted The simple fact that the decree was
opened TO try was the allegation OF adultery
against the defendant and to allow the defendant
to aege such against ner prior 10 the decree. In
view OF this cannot see what effect the excepted
parts can have. II the plalnrin will set aside her
decree SHE is at liberty to do It, as by that she can
leave the defendant free from the fault charged
and from the disabilities which the decree places
him under IL was supposed on the hearing thai
the decree might be modined, but that the statute
VIII not permit, and 1t will hardly do Tor the COur
to commit an offence 10 release TINS party rom me-
own mistakes. Motion 10 strike out granted.