The New York herald., 1878-07-06
THE COURTS.
A Question Of Inability to
Pay Alimony.
AN IMPORTANT DECISION.
New Phase in Miss Kate Claxton's
Bankruptcy.

II win be remembered that some time sge Chief
Jusics DAILY gave dscstoL conn rm ng the report Of
Nathaniel Jarvis, Jr. rsisree In the suit fef limited
divorce brought By vashti r. Ailderberger against
her husband, Oliver H. Aiiderberger. Tho report
was In favor Of the plaintiff directing separation OF
the parties and the payment OF alimony. The Chisi
Justice In hrs opinion rendered nme said that
~ it might DO probable thai the defeu dan who hvsd
upon income derived from his deceased fathers
estate. who had business any other source
OF revenue might spent all he received, SO
that II would be out OF his power TO pay the back
alimony; and leave was therefore given nim' 10
apply 10 the Court for . modification OF the
judgment ordering the payment OF back
alimony. If he could mako 1t appear that he was un
able from want Of means to obey the decree Such
application accordingly made 20 Judge Van Hoessn
In The Court Of Common Pleas, the defendant n hts
petition stating that since the begin ming OF the suit
and Tor years previous he had had income except
govern bonds and from rent OF real
estate. In each OF which he has only life interest
that has each year been decreased by the
decline In goId and that for years he
seived NO income from the real estate, ~ the build
Ing on tho land burned down in the winter OF
1875 He further that he has not saved or ac-
sumulated any moneys from bis income aud IL totally
unable 10 pay the alimony decrsed 10 be paid from
February 49, 1874. any part of the same. He also
alleges the was closed before the RET
nn's income is received been let for barroom
and restaurant for about 81, 200 per annum, and
ment IN the statement made before the referee aud
the painnds income has thus beon Increased 81, 200
Judge Van Hoesen In his decision, rendered yssier-
day, says:-'There 10 no reason that can discover
TO DOUBT the oefendant's statement and am led to
the conclusion that he has not at hand the means Of
counsel seemed TO oonceas that the defendant was
without tho present ability 10 pay the
%01y uan%:u. should no. be- modified because the
defendant mad rich relatives who would advance
prisonment and further because the defendant could
pay the back aimony In instaiments out OF the In
some still left 10 him by the Court The first argu-
nent very strange ono 70 present 1t amounts TO
hs-that the Court should use Its process 10 extort
money from sne kindred Of debtor VINO has not the
OF meeting his obligations Prates and brigands
,eize that their friends may ransom them, but
ours justice do not proceed IN that way Further
more, think II would be wrong TO order the defend
Ant TO pay back alimony out or the resduam OF the
income which the Court has allowed to nim From
the time OF the entry Of Judgment the plaintiff viii
- certainly very liberal provision. Ony exrraordi-
nary circumstances justify 80 extraordinary an allow
snce. Chancellor Kent said that IN cases OF
limited divorce the general rule was 10
allow the oue-thlrd, or at least oneourth the
husbands annual income from fixed investments.
The plaintiff has alreaay got than the customary
allowance. During the pendeucy OF tho suit she re-
Whom sny opeer from the Court She saws sns has
had to borrow from her friends money which she
wishes TO repay The purposes Tor which she used the
borrowed money are not stated, though inier that
she spent It . house which she owns ~ CxtskiiL
But she knew what her allowance was. and sbe had
right 60 beyond it, and her inco
Ii largely augmented she easily
portion Of the increase pay on her back debts
When the learned Judge ordered that the plaintiff
should have hall of the defendants income he
saniy did not intend that through tho claim for back
nmony she should also get the principal part OF the
other half In word, l understand the learned
Judge to have intended that II the defendant tho
money IN his hands should pay tho plaintiff back
Alimony. but that the decree should be nodded
that It shall not require the payment OF back shmony
The defendant had other means than the
one-haf OF the Income from his deceased tathers
tate which lett 10 him for his maiuiena ance.
Let the defendant present TO me- ~ Special Term
July Is inst, at ten A. NJ, his proposed modihca-
lion OF the decree, and copy OF IL plaintiffs
attorney on or before July l0n