Schweig v. Schweig

107 N.Y.S. 904 | N.Y. App. Div. | 1907

Clarke, J. :

This is an appeal from an order of the Special Term awarding to . the plaintiff alimony pendente lite at the rate of ten dollars per week, and a counsel fee of seventy-five dollars. The order is based upon a petition of the plaintiff, in which it >is alleged “ That she will be able to Substantiate all the allegations- of the complaint- by proof at the. trial, and that she has a good cause of action thereon, as she is advised by her counselor * *. • * and that she verily believes.”

The,complaint alleges “on information and. belief that at divers, times and at various peaces in-the City of New York, between the 1st day of September, 1906, and the 1st day of January, 1907, the defendant has committed adultery with a woman.whose name is -at present unknown to the plaintiff.” This allegation of the complaint. is .denied under oath by the defendant.

This order should not have been granted under the express authority of Downing v. Downing (23 App. Div. 559), where this court said : “All the allegations constituting the ground of divorce in the complaint are upon information and belief; and this motion was based, upon a petition and "the complaint. The defendant, answering the motion, filed an affidavit denying absolutely the charges of adultery contained in the complaint, and iio proofs whatever tending to show the sources of inf or i nation, or the grounds of belief of the plaintiff, were presented to the court. We think, under these circumstances, the plaintiff’s motion should have been denied. In aid of her application she should have exhibited to the court some evidence tending to show that there was a reasonable ground for her commencing the action, and that there was a reasonable probability that she might succeed in establishing her charges.” ( Wood v. Wood, 61 App. Div. 96.)

Therefore, this order should be reversed and the motion denied, without costs, with leave to renew upon further proofs.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Order reversed and motion denied, without costs, with leave to renew as stated in opinion. Settle order, on notice.