Berger v. Berger

126 N.Y.S. 284 | N.Y. App. Div. | 1910

Scott, J.:

Appeal by plaintiff from an order awarding defendant alimony and counsel fee pending an appeal.

The action is for an absolute divorce. The defendant appeared and answered and the cause was referred. Upon the trial the defendant, although represented by counsel,. offered ho evidence, not even denying the adultery, but elected to stand on the supposed weakness of the plaintiff’s case. The referee reported in favor of plaintiff, his report was confirmed' by the court and a. decree of divorce granted. The defendant has appealed and the proposed case on appeal is a part of the printed papers now before us. The order appealed from requires the plaintiff to pay to defendant a counsel fee; the cost of printing the case on appeal and alimony until the decision of the appeal from the judgment.

That the court has power to award an appellant in a divorce suit alimony and counsel fee in order to enable her to prosecute her appeal is not doubted, but it is a power which should be seldom exercised. Every presumption and intendment is in favor of the validity of the judgment, and to warrant the extreme measure of. awarding counsel fee and expenses to the appellant "strong reasons must appear for believing that the appeal will be successful. It ' would, be inappropriate to now express an opinion as to the probable result of defendant’s appeal from the judgment against her, but an examination of the papers on this- appeal fails to persuade us that a case is presented to justify the granting of counsel fee, . expenses and alimony pending appeal. ■

The order appealed from should be reversed and the motion denied: .

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., ' concurred.

Order reversed and motion denied.