186 A.D. 814 | N.Y. App. Div. | 1919
This action is brought by the plaintiff to obtain a decree of separation from the defendant, her husband, by reason of the alleged cruel and inhuman treatment of the plaintiff by defendant, and by reason of defendant’s having abandoned and failed to support plaintiff.
By the answer of the defendant the alleged cruelty and abandonment are denied.
An order has been made at Special Term, upon motion of plaintiff, directing defendant to pay plaintiff the sum of $50 each week as alimony for the support and maintenance of plaintiff during the pendency of the action, and that defendant pay to the plaintiff’s counsel the sum of $150 as counsel fee herein. From such order defendant has appealed, and asks a reversal thereof upon the ground that it does not satisfactorily appear that plaintiff will probably succeed in her action, and that the amounts allowed to her for alimony and counsel fees are excessive.
The law is well settled that where a wife brings an action for a separation, before she can properly be granted an allowance by way of alimony and counsel fees, it must appear that she has reasonable ground for bringing suit, and that there is a reasonable probability that she will succeed in maintaining her action. This has been the law of the State for many years and the courts have quite uniformly insisted
Notwithstanding such well-settled rule of practice, there seems to be an inclination and a tendency of courts to regard with favor applications for alimony and counsel fees for the benefit of and upon the application of the wife in matrimonial actions. Frequently, almost as a matter of course, without regard to the meritoriousness of the wife’s position in the litigation, allowances are made to the wife upon the' mere asking. Such practice is to be condemned, and an allowance should never be made unless it appears that the action is founded upon good cause, and that there is reasonable ground to believé that the party asking the allowance will succeed in the litigation.
To my mind the pleadings and affidavits used in connection with the application in the instant case not only fail to show any reasonable ground for bringing action on the wife’s part, but it is very doubtful if she will be able to succeed in obtaining the relief which she seeks. The plaintiff’s complaint is most general and vague in its allegations of improper conduct on the part of the defendant. The complaint consists of a mass of conclusions that the defendant has treated the plaintiff during their married life in a cruel and inhuman manner, and that the conduct of the defendant toward the plaintiff is such as to render it unsafe and improper for the plaintiff to cohabit with the defendant. The plaintiff alleges and reiterates that the defendant during their married life
The evidence shows that soon after the incident mentioned the defendant went upon his business trip, but continued to supply plaintiff with money for her maintenance. At least once thereafter plaintiff acknowledged by letter, with thanks, the receipt of a check from defendant, and the plaintiff concedes that the defendant, for several weeks thereafter and until she left his home, continued to furnish her with money for her support. The wholesale allegations con
The defendant denies absolutely all allegations of the plaintiff as to his improper conduct toward her.
The papers upon which the order was granted fail to show that the plaintiff had just cause for commencing her action, and we are of the opinion that the plaintiff has failed to show any reasonable probability that she will succeed in obtaining • the relief which she seeks.
The motion for counsel fee and alimony should have been
Clarke, P. J.", Laughlin, Page and Shearn, JJ., concurred.
Order reversed and motion denied.
See 5th ed.— [Rep.