Special Term.

[Dec.

[........Miso..

WOOD v. WOOD.

96 St. Rep. 354; 62 Supp. 354.]

(Supreme Court, Special Term, New York County, December, 1899.)

1. SEPARATION—ALIMONY-COUNSEL FEES.

Plaintiff in an action for separation alleged defendant's abusive language, threats, insufficient support; also neglect of her during illness. It appeared that she was in very bad health, and in need, and that the police court had refused her alimony because her husband had offered her a

NOTE.-ALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION.

a. Temporary alimony.
1. In general.

2. Establishment of marriage.

3. Agreements.

4. Rule in New York City.

5. Duration.

b. Permanent alimony.

c. Counsel fees and expenses.

d. Amount.

e. Modification.

f. Enforcement.

1. In general.

2. Security and sequestration.

3. Contempt.

g. Practice.

1. In general.

2. Institution of proceedings.

3. Appeal.

a. Temporary alimony.

1. In general.

The part of 1769 Code Civil Procedure here applicable is as follows: Where an action is brought, as prescribed in either of the last two articles.

home.

Held, under these circumstances, and in view of the fact that her suit for separation made it impossible for her to live with her husband, that this was a proper case for the granting of alimony and counsel fee by the supreme court.

2. SAME WIFE'S ATTORNEY-HUSBAND'S LIABILITY.

An attorney may maintain an action against a husband for services rendered the wife in a suit for separation.

Action by Mary Wood against James Wood for separation. Motion by plaintiff for alimony and counsel fee. Allowed.

J. B. Lockwood, for the motion.

G. H. Hart, opposed.

GILDERSLEEVE, J. The motion is for alimony and counsel fee in a separation case brought by the wife against the husband. The facts appear to be as follows, viz: The wife brought a forALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION,-continued.

the court may, in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties.

The authority of the court to award alimony and counsel fees is based upon statute.

Cullen v. Cullen, 55 Super. 346; 18 St. Rep. 381.

Kamp v. Kamp, 59 N. Y. 212.

Griffin v. Griffin, 47 N. Y. 134.

Erkenbrach v. Erkenbrach, 96 N. Y. 456.

The granting of alimony pendente lite is in the discretion of the court, Douglas v. Douglas, 13 Abb. N. S. 291.

Hollerman v. Hollerman, 1 Barb. 64.

Bissell v. Bissell, 1 Barb. 430; 3 How. Pr. 242.

Carpenter v. Carpenter, 19 How. Pr. 539.

Solomon v. Solomon, 28 How. Pr. 218; 3 Robt. 669.

Worden v. Worden, 3 Edw. Ch. 387.

Boubon v. Boubon, 3 Robt. 715.

A temporary allowance for the wife's support and expenses of the suit is

mer action for a divorce on the ground of adultery. The action was tried before Mr. Justice Beekman, and the complaint dismissed for insufficient proof of defendant's adultery. The wife then brought this action for a separation on the ground of cruel and inhuman treatment, consisting of abusive language, threats, and insufficient support, and also of neglect of plaintiff in her illness. The plaintiff claims that the defendant earns $100 a month, while the defendant asserts that he only earns $18 a week. He is an engineer on the elevated railroad in this city. The plaintiff has applied several times to the police courts, and the defendant has been ordered to contribute in various sums to plaintiff's support. Subsequently the parties went to live together again, and the orders of the police courts ceased to be effective. The plaintiff went afterwards to live with her daughter, as she was unable to get on with her husband, and the husband for some time continued to send five dollars a week to the daughter, but has now ceased to do so, and no arrangement at present appears to be in force for the support of the plaintiff. proof is also produced to the effect that plaintiff is in very bad health, and is in need of assistance. As a general rule, I think that applications for alimony in separation cases, where the wife

ALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION,-continued.

almost a matter of course, where it is probable that she will succeed in the action, and she is destitute.

Jones v. Jones, 2 Barb. Ch. 146.

Wright v. Wright, 1 Edw. Ch. 62.

But in order to be entitled to alimony and counsel fees pendente lite the wife must show a meritorious suit and good grounds for such allowance, Worden v. Worden, 3 Edw. Ch. 387.

Bissell v. Bissell, 1 Barb. 430; 3 How. Pr. 242.

Carpenter v. Carpenter, 19 How. Pr. 539.

Douglas v. Douglas, 13 Abb. (N. S.) 291.

Bertschy v. Bertschy, 14 Week. Dig. 111.

Alimony will be denied where the plaintiff fails to show facts to establish any of the causes for which the statute provides a separation can be adjudged.

Davis v. Davis, 75 N. Y. 221.

is the plainitff, should be made to the police courts, which are abundantly provided with means to make the husband properly contribute to the support of his wife; while the counsel fee might await the result of the action, as the attorney can maintain an action against the husband for services rendered to the wife in a separation case. See Naumer v. Gray, 28 App. Div. 529; 85 St. Rep. 222; 51 Supp. 222. There are, however, exceptional cases, where the application can better be addressed to the supreme court. I think this is one of them. The plaintiff has already made several attempts to have the matter of her support satisfactorily determined in the police courts, and the last time the court appears to have refused to give her any support for the reason that her husband offered her a home. She claims that the home was not suited to one in her delicate health; besides which, the commencement of this action for a separation renders it impossible for her to live with her husband. I am of opinion that the plaintiff should have $6 a week alimony and a counsel fee of $25.

Ordered accordingly.

ALIMONY AND COUNSEL FEES IN ACTION FOR Separation,-continued.

When it seems reasonably certain from the affidavits, on a motion for alimony and counsel fees, that the wife has adequate pecuniary resources of her own, the same will be denied.

Maxwell v. Maxwell, 28 Hun, 566.

Collins v. Collins, 80 N. Y. 1.

Alimony or counsel fees cannot be given to a wife merely to punish a husband because he refuses to consent to a reference of the action or because it appears he is an unworthy person.

Patterson v. Patterson, 4 App. Div. 146; 74 St. Rep. 502; 38 Supp. 637. There should not be a denial of temporary alimony on the ground of the husband's inability to pay the same, unless he shows such inability by convincing proof.

Ward v. Ward, 29 Abb. N. C. 256; 21 Supp. 795.

The court has power to grant temporary alimony where it is alleged by plaintiff that defendant on various occasions wantonly and maliciously charged her with unchastity and infidelity to her marriage vows, that on one occasion he pointed a pistol at her head, when angry, apparently with intent to kill her, and on another occasion ordered her out of the house and

ALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION,-continued.

said he would make it too hot for her and threatened to murder her, although such allegations are denied by the defendant.

Kennedy v. Kennedy, 73 N. Y. 369.

A wife is not entitled to alimony who, without any assigned cause, quita the home provided for her by her husband, and goes to live elsewhere, without offering to return or to live with him.

Boubon v. Boubon, 3 Rcbt. 715.

Hollerman v. Hollerman, 1 Barb. 64.

Temporary alimony and counsel fees cannot be granted in an action for maintenance and support simply.

Ramsden v. Ramsden, 91 N. Y. 281.

If a husband bring an action for separation against his wife he must provide for her support and help her to make defense.

Purcell v. Purcell, 3 Edw. Ch. 194.

Where it appears that the wife is an habitual drunkard and the defendant allows her $2.00 per week, an allowance of temporary alimony and counsel fees is properly refused until a reference is had to ascertain whether the sum paid her is enough and whether she can be entrusted with money. Saunders v. Saunders, 2 Edw. Ch. 491.

Temporary alimony will be denied in an action for separation on the ground of desertion, where it appears that the wife had refused, without reason, to live in a suitable home provided by the defendant and had caused him to be ejected from the home in which they were living. Kirsch v. Kirsch, 45 St. Rep. 287; 18 Supp. 447.

Alimony pendente lite will be refused a wife in an action for separation on the ground of cruelty and abandonment and to set aside a voluntary agreement of separation, where, the cruel treatment took place before the making of the agreement and the only abandonment was under and pursu ant to the agreement.

Curtis v. Curtis, 29 Misc. 257; 95 St. Rep. 59; 61 Supp. 59.

So, alimony pendente lite will be refused where the alleged abandonment consisted in the wife's refusal to live elsewhere than in a residence of her own selection.

Bethune v. Bethune, 5 Law. Bull. 71.

In an action for separation on the ground of cruelty and inhuman treatment one instance of cruelty is not sufficient to warrant an allowance of alimony and counsel fees.

Solomon v. Solomon, 3 Robt. 669.

The wife cannot be allowed temporary alimony where she was guilty of licentitious conduct and misbehavior before the alleged acts of cruel treatment by the husband.

Bedell v. Bedell, 1 Johns. Ch. 604.

A denial in the answer that plaintiff was an actual resident of the state