131 N.Y.S. 741 | N.Y. App. Div. | 1911
The appeal is based upon the theory that the plaintiff having ample means of her own, the court has not power in an action for separation to grant her counsel fees, and Lake v. Lake (194 N. Y. 179) is relied upon as sustaining that contention. The affidavits disagree as to the means and income of the parties, but we. must assume that the court, in exercising its discretion has found the facts favorable to the plaintiff. We may, therefore, assume that the plaintiff has an income from her father’s estate of $150 per month. Upon her death the fund from which the income is derived goes to her children. She also has an income from securities owned by her amounting to $500 or $600 a year. The husband is the owner of real estate assessed at $140,000, is engaged in the grain business and has a large business and a large income and maintains two automobilés. When living together and maintaining the family in the family residence the family expenses were nearly $15,000 per year. The plaintiff is a woman of refinement and of high social position, and has been accustomed all of her life, both before and during her marriage, to a -standard of living which she cannot sustain on the income which she receives. She has been accustomed to the services of several servants and to living in a-large and well-furnished house. The defendant’s answer, by an alleged counterclaim, alleges misconduct against the plaintiff and asks a judgment of separation from her. The plaintiff is, therefore, before the court to prosecute her action and to defend against the alleged cause of action against her.
In granting the order the court must have determined, within the Lake case, that the allowance was necessary to enable the plaintiff to prosecute or defend the action. Under section 1769 of the Code of Civil Procedure, in addition to the. moneys necessary to prosecute or defend the action, the defend
Under all the circumstances, considering the means and standing of the parties, we cannot say that the allowance is improper or that the Special Term abused its discretion in determining that it wás necessary for the plaintiff in order to prosecute her action and to defend against the alleged cause of action of the
defendant. The order is, therefore, affirmed, with costs,
All concurred.
Order affirmed, with ten dollars costs and disbursements.