Boesenberg v. Boesenberg, 63 N.Y.S. 770

Boesenberg v. Boesenberg

63 N.Y.S. 770 | N.Y. App. Div. | 1900

Per Curiam:

Notwithstanding the strong array of proof made against this defendant in the affidavits presented by the plaintiff in. opposition to the motion for alimony and counsel fee, we are of the opinion that the issue as to her adultery should not be determined upon affidavits and that she should have an opportunity to cross-examine the affiants whose sworn statements so strongly inculpate her. She positively denies having-committed any of the acts of adultery with *623which, she is charged. She claims, and her claim has some support, that she left the plaintiff by reason of his gross brutality, and there is much in the presentation of her side of the case to justify us in forebearing to determine now that she is so conclusively proven guilty as to deprive her of support pending suit, and of money necessary to pay counsel for her defense. The case is not like Stearns v. Stearns (33 App. Div. 630). in which the undisputed and unexplained facts showed that the denial of a charge of adultery was absolutely false. Under the circumstances of this case, however, we think the allowance both for counsel fee and alimony was too large, and the order appealed from should be modified by reducing the alimony to $15 a week and the counsel fee to $150, and as modified the order should be affirmed, without costs. Present—Van Brunt, P. J., Barrett, Rurasey, Patterson and McLaughlin, JJ.