Hawley v. Hawley

88 N.Y.S. 606 | N.Y. App. Div. | 1904

Per Curiam:

The obligation to support the, wife inheres in the marital relation, and she is entitled to such support pen ding, an action for separation, unless the husband be clearly relieved therefrom, either by agreement with the wife through a trustee, or by some act of misconduct on her part which operates to deprive her of the right. In the present. case the petition upon which the application is based, verified, by the wife, makes out a case which entitled her to an award of alimony, unless the same was completely overthrown by the opposing papers. The fact that the plaintiff’s attorney has chosen to lug in and connect with his application a mass of irrelevant and scandalous • matter does not' operate to destroy the averments of the petition. It may be that the plaintiff will be defeated in her action, but the court should not try or determine such question upon affidavits. (Kennedy v. Kennedy, 73 N. Y. 369.) As the obligation in this case rests upon the husband to support the wife, and as the averments of her petition show that she has not forfeited that right, it was incumbent upon the court to make some provision therefor.

We think the order, should, therefore, be reversed and the alimony be fixed at six dollars per week, payment to begin with the date of the entry of the order. No counsel fees and no costs of this appeal are allowed to either party.

Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Order reversed and order directed as stated in opinion, without costs. ' '