196 A.D. 607 | N.Y. App. Div. | 1921
The complaint in this action is for an absolute divorce within the State of New York under its laws. The defendant has denied the material allegation of the complaint, in an unverified answer, and has given formal notice that he will not cross-examine any of the witnesses of the plaintiff upon the subject of the alleged adultery. The learned court at Special Term, in ordering alimony, counsel fees, etc., has handed down an opinion in which he says that he (the defendant) “ has in effect confessed that he has been unfaithful to his marital vows, and is guilty of the several charges of adultery,” and proceeds to order payments upon a basis which would be liberal, to say the least, upon a final adjustment
It is not necessary to hold in the present case the strict rule of Lawrence v. Lawrence (3 Paige, 267, 270) that the wife shall be limited to the actual necessities; she is entitled, no doubt, to such "sums of money as shall be reasonably “ necessary to enable the wife to carry on or defend the action.” But the Code of Civil Procedure limits the scope of the order to “ during the pendency ” of the action, and it does not extend to a period antedating the bringing of the action, during which time the law presumes the wife to have been suitably cared for. The affidavit of one of plaintiff’s counsel, in support of the motion here under consideration, tells in detail of matters which preceded the bringing of the action, giving an itemized statement of amounts alleged to have been “ actually and necessarily paid out in procuring evidence of the defendant’s adulteries and in protecting such evidence against loss and destruction, and for the relief of plaintiff’s immediate necessities,” aggregating $3,576.98, and the allowance of counsel fees and disbursement expenses aggregating
The court has the power, under section 1769, to make and modify orders from time to time during the pendency of the action, so that the plaintiff is fully protected in her right to have a full and fair trial of the issue raised. If she succeeds she will, no doubt, be provided with funds adequate to meet her obligations and to maintain herself and her children, if their custody is given tó her. We are persuaded, therefore, that the allowance for counsel fees in the present case should •be reduced by the amount of the disbursements made prior to the bringing of the action. If the plaintiff fails there is no reason why the defendant should be charged for the disbursements made in collecting alleged evidence prior to the bringing of the action.
We do not find any reason for supposing that the plaintiff will be called upon to expend $1,500 in serving subpoenas and in other incidental expenses; that is a large sum of money to be used in a comparatively simple law suit, where the most of the essential witnesses upon the contested issues must of necessity reside in and near the home of the parties. No such sum is shown to be “ necessary to enable the wife to carry on or defend the action,” even under a liberal view of the word “ necessary.” The allowance of $200 per week for the support and maintenance of the wife and her three children, none of them over seven years of age, during the pendency of the action — during the time that it is being determined whether the plaintiff has a right to the relief which she seeks — would seem to be ample to provide for these incidental expenses. The defendant, if innocent, has a right to limit his family expenditures, and the court, under the pleadings as they stand, has no right to assume the guilt of the defendant and to make extravagant provisions for counsel and the
The order appealed from should be' modified by striking out the sum of $3,500 from the counsel fee, the $1,500 for subpoenas, etc., and as so modified the same should be affirmed, without costs to either party.
All concur, John M. Kellogg, P. J., in the result.
Order modified in accordance with the opinion, and as so modified affirmed, without costs in this court to either party.