Unger v. Unger — 152 A.D. 828

Majority

p. 828

Melanie Unger, Appellant, v. Max Unger, Respondent.

First Department,

October 25, 1912.

Headnote

Husband and wife—action for separation — alimony pendente lite.

Where a husband sued for a separation because of cruel and inhuman treatment and abandonment admits the marriage and the abandonment, and, while denying the cruel and inhuman treatment, alleges that at the time of the marriage the plaintiff was bound to a living husband by a common-law marriage, which she denies, the alleged former husband having since died, the defendant should be required to pay alimony pendente lite, together with a counsel fee.

p. 829

Appeal by the plaintiff, Melaine Unger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1912, denying the plaintiff’s motion for alimony and counsel fee.

Jacob Klein, for the appellant.

M. Strassman, for the respondent.

Action for a separation on the ground of cruel and inhuman treatment and abandonment. The answer admits the marriage, the abandonment, denies the allegations of cruel and inhuman treatment and alleges that at the time the marriage ceremony was performed the plaintiff was married to one Pfeiffer, who was then living. After issue had been joined the plaintiff moved, .upon notice, for alimony and counsel fee. The motion was denied and plaintiff appeals.

Upon the conceded facts I am of the opinion the plaintiff was entitled to a reasonable amount of alimony and counsel fee. The marriage and abandonment being admitted, nothing is left of defendant’s alleged defense except that at the time the ceremony was performed the plaintiff was unable to enter into the marriage contract by reason of her marriage to Pfeiffer. What is claimed as to. this defense, as set forth in the affidavits used in opposition to the motion, is that the plaintiff was the common-law wife of Pfeiffer. It is not even suggested that a marriage ceremony was ever performed between them other than an oral agreement to assume such relations and that such relations were assumed from about 1902 until the 18th of February, 1910 —• the time when the marriage ceremony between plaintiff and defendant took place. Pfeiffer died March 2,1910. The plaintiff denies that she was ever the common-law wife of Pfeiffer or that an agreement of any kind was ever entered into between them by which such relations were assumed. She does not deny that her relations with him were meretricious, but asserts that the defendant, prior to his marriage to her, was informed by her of that fact and had full knowledge of it and facts are set forth by her which, if

p. 830

true, tend in no small degree to corroborate her in this respect. The marriage and subsequent abandonment being admitted, the remaining issue, as to whether the plaintiff was capable of entering into'the marriage ceremony with the defendant, ought not to defeat her application for counsel fee so that she can have that issue determined at a trial. In the meantime defendant should be required to pay a reasonable amount for her support.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, requiring defendant to pay to the plaintiff twelve dollars and fifty cents per week alimony and one hundred and fifty dollars counsel fee.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted as stated in order, with ten dollars costs.