Cohen v. Cohen

11 Misc. 704 | New York Court of Common Pleas | 1895

GIEGERIGH, J.

This is an application by the wife for counsel fees to enable her to defend the action, which is brought by the husband for a divorce on the ground of adultery. Where the wife denies on oath the charge, she is entitled to such allowance, even though the affidavits read on the part of the husband show her guilt (Osgood v. Osgood, 2 Paige, 621; Hallock v. Hallock, 4 How. Pr. 160; Frickel v. Frickel, 4 Misc. Rep. 382, 24 N. Y. Supp. 483),, “unless,” as was said by Judge Gildersleeve in the case last cited, “it appears clear beyond reasonable doubt that the ultimate success-of the husband in the litigation is inevitable.” The defendant takes oath in denial of the charges, and in view of this denial, and of the allegations contained in her moving affidavit, although the latter are very vague in character, there is no justification, under the authorities, for deciding the question of her guilt upon such conflicting affidavits. Leslie v. Leslie, 6 Abb. Pr. (N. S.) 193; Frickel v. Frickel, supra; Hallock v. Hallock, supra. A careful consideration of the papers submitted satisfies me that the plaintiff is absolutely without means; but his poverty is no defense to the application. Hallock v. Hallock, supra; Frickel v. Frickel, supra. He must, in an action of this character, either furnish the wife with money to-enable her to make her defense, or abandon the action. Purcell v. Purcell, 3 Edw. Ch. 194. Great injustice might be done if the husband were not compelled to' furnish to his wife the means of having so important a question of fact as is involved in this action decided in the usual manner. Hallock v. Hallock, supra. It is proper, however, to take into consideration the pecuniary ability of the husband, and the circumstances in life of the parties, in fixing the amount of the allowance. Hallock v. Hallock, supra. From a consideration of these matters, as well as of the facts and circumstances of the case, as disclosed by the "papers submitted upon this motion, I am of the opinion that the defendant should have a counsel fee of $25 to defend the action, which the plaintiff should pay within five days after the entry of the order.