Opinion
May 31, 1949.
Action for absolute divorce by a wife against her husband. Plaintiff appeals from orders denying a motion to punish defendant for contempt for failure to pay temporary alimony and the balance of the counsel fee awarded by an order entered before answer and on default of the defendant. Order granting plaintiff's motion for reargument and on reargument adhering to the original decision, which denied plaintiff's motion to punish defendant for contempt, reversed on the law, with $10 costs and disbursements, and plaintiff's motion remitted to Special Term for rehearing and determination on oral proof. Appeal from the original order dated January 18, 1949, dismissed, without costs. That order was superseded by the order granting reargument and adhering to the original decision. If defendant fraudulently induced the plaintiff to resume marital relations and if, in fact, he did not intend in good faith to be reconciled, or continued his intimacy with the corespondent, he cannot avoid compliance with the order directing payment of alimony and counsel fee. ( Johnson v. Johnson, 14 Wend. 637; Betz v. Betz, 19 Abb. Prac. 90; Deisler v. Deisler, 59 App. Div. 207, 214; Beale v. Avery, 277 Mass. 332.) In view of the contradiction in the affidavits submitted on this motion, Special Term could not properly dispose of it without oral proof. In the cases relied upon by Special Term there was no dispute that a bona fide reconciliation had taken place. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.