Barber v. Barber

Appeal from an order of the Supreme Court at Special Term which granted plaintiff’s motion for temporary alimony and counsel fees in an action for divorce. The moving papers contain no factual averments tending to support the allegations, made upon information and belief, of defendant’s adultery or to indicate the probability of plaintiff’s success in the action. There is no denial of defendant’s statement in his answering affidavit that he has turned over to plaintiff property of substantial value. Special Term dealt with this question by stating quite correctly that in the absence of a separation agreement defendant remains liable for his wife’s support. Nevertheless, defendant’s averments had some 'bearing on plaintiff’s present necessities and called for some answer or explanation. Plaintiff states that she earns $40 per week when she is able to work. The questions of support presented by this particularly unfortunate litigation might, perhaps, be best determined, in the event of a subsequent sufficient motion, after a hearing and the reception of evidence by the Special Term. Order reversed and motion denied, without costs and without prejudice. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ. concur.